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 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

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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.

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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

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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

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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

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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

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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,

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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.

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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

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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?

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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

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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.

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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).

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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

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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.

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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.

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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

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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

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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?

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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?

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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

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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

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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.

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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.

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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

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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.

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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.

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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

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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.

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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

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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

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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.

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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

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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

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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.

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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

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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.

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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?

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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,

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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

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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?

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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

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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

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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

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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

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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.

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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.

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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

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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.

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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

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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

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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?

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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,

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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

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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.

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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

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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.

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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.

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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.

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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?

A. I did. I completed a two year training program with the

latent fingerprint unit with the FBI.

Q. So we understand, although I think we do, explain to us

what a fingerprint is as it is used forensically?

A. On the palmar side of the hand and soles of your feet

there is raised portions of skin, this is known as friction

ridge skin. A fingerprint is typically what is indicated as

the friction ridge skin that is present on the end joint of

the finger, usually recorded in black ink, and rolled across a

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contrasting card such as a fingerprint card.

Q. Is there a specific methodology that's used to compare

fingerprints?

A. We utilize a methodology known as ACV, which stands for

Analysis, comparison, verification. The analysis portion we

look to see what identification is present in a print, the

ridge flow, pattern type, and presence of characteristics such

as the end of a ridge, dividing ridge and a dot. The

comparison portion we look at both prints to see if the same

information is present in the both prints with out an

explainable difference. In the evaluation phase we make a

determination if the two are from the same source. The last

step, the verification phase, a second qualified examiner

reviews the identification.

Q. Can you tell us what the basic factors are in the use of

fingerprints as a means of identification?

A. Fingerprints are both permanent and unique. They are

permanent in that they form prior to birth and remain

consistent throughout an individual's life barring any deep

scarring. They are unique in that the environmental and

genetic factors influence the formation of the friction ridges

and thus are unique to an individual.

Q. I believe you indicated that one of the things you

specialized in was the identification of individuals who were

deceased?

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A. That's correct.

Q. Can you tell us if there are particular problems that

arise obtaining fingerprints from deceased individuals in

general?

A. Well, there is a number of issues relative to the

condition of the hands or fingers of an individual based on

how long that person has been deceased, or where the body was

located.

Q. What types of problems?

A. Those factors might involve if they were in a very dry

or, dry area, then the fingers could be almost mummified. If

it is in a humid or wet area, they may decompose much faster.

If they are water logged or burned, that also can be a factor

in the condition of the fingers.

Q. Are you familiar with a technique whereby the hands of

the decedent are sometimes severed and sent in to the lab in

an effort to effect an identification?

A. Yes.

Q. Have you ever had the circumstance to work on any hands

in that situation?

A. I have.

Q. On how many occasions?

A. Approximately I would say three or four times that's

occurred.

Q. In total how many such identifications does the FBI

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laboratory perform in a year?

A. The laboratory receives about nine to ten sets of hands

or fingers per year.

Q. And particularly why is that technique used, what is the

purpose of that, what does it enable you to do that couldn't

other wise be done?

A. We have the necessary tools and chemicals that we can

use in order to deal with hands or fingers that may not be in

optimal condition. The ideal condition would be you could

actually take the finger and record it, but due to the factor

I mentioned earlier, sometimes it's a little bit more

difficult. And we have a number of procedures and techniques

that we can follow to aid in the recording of the friction

ridges on the skin -- that's on the fingers, excuse me.

Q. Obviously you were not working for the FBI laboratory 28

years ago?

A. No.

Q. But did you review the file that was done in terms of

the identification of Anna Mae Pictou-Aquash?

A. I did.

Q. I will ask you first of all if you can tell from your

review what took place in that case to effect an

identification?

A. Yes, I was able to do that.

Q. What was that?

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A. Based on the photographs that were maintained in our

files, there is an indication that the fingers were placed in

a material called Duplicast, which is a material that is

similar to epoxy where you mix two liquids and they then

solidify in a short amount of time, and that way the fingers

can be impressed into the material. The material hardens and

you are left with a cast of the friction ridges on the

fingers.

Q. Then what is done after you make that cast?

A. The casts are then photographed, and each individual

finger that is represented is, that photograph is placed in a

ten print block on a fingerprint card.

(Exhibits 40-41 marked For identification.)

Q. I will ask you to look at two Exhibits I have placed ir

front of you, Exhibits number 40 and 41. First of all, can

you tell us what Exhibit No. 40 is?

A. Exhibit No. 40 is a photograph of the impressions that

were made from the hands that were submitted in this case.

And Exhibit No. 41 is the template card bearing the name Anna

Mae Pictou from our files.

Q. That Exhibit 41, was that what is referred to as the

known set of prints?

A. Known set prints, yes.

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MR. MANDEL: I offer Exhibits 40 and 41 at this

time.

MR. RENSCH: No objection.

THE COURT: Exhibits 40 and 41 are received. I

think this might be a good time to take our morning break. So

remember what I have told you before, members of the jury,

don't talk to each other about the case, keep an open mind

until you have heard all the evidence. Thank you, we will be

in recess for fifteen minutes.

(Recess at 10:25 until 10:45 ).

THE COURT: Re-take the stand, please.

BY MR. MANDEL:

Q. In preparation for your testimony here today did you

review the file in this matter?

A. Yes, I did.

Q. First of all, from the file review did it indicate that

an identification was made in this case?

A. Yes, it did.

Q. Are you able to see that okay on the monitor?

A. Yes.

Q. I have put what has been marked Exhibit No. 40 on the

monitor. Can you tell us what that is, and based on your

review of the file how that was prepared?

A. This is the photograph of the card that was created from

the impressions of the fingerprints of the hands that were

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submitted. These are actual individual photographs of each

finger that are taken and then placed on the template card,

and the template card is photographed as a whole. Once you

have all ten fingers present, the card is then classified,

this is known as a Henry classification. Prior to when we had

computer data bases, all fingerprint cards received Henry

classifications. Those are what the numbers are up in the top

on the right side in the block where it says 19. All of that

information is derived from the pattern types and the

classification of the fingerprints on the card. This card

would have been then sent down to the technical section where

based on this classification they would have manually searched

through the fingerprint cards on file. At that time when

someone down there found one that matched the classification,

it was sent back up to the latent examiner who compared the

template card.

Q. The FBI even at that time had a lot of fingerprints on

file, right?

A. That's correct.

Q. In the millions?

A. I would say tens of millions probably.

Q. How long does it take to do a comparison of that type in

general?

A. In general it would depend really on how unique the

classification is. For example, the most common pattern type

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is loops, so if a person has all loops, it may take a little

longer to search manually through the files. But there is

also information such as how many ridges between two areas of

the fingerprints, that kind of information can help break down

the number of files that need to be searched through. In this

case it was a female, and I believe only 20 percent of the FBI

files are of females, so that again reduces the number of

people that would need to be manually compared to.

Q. I notice on that card there is some numbers written in

the upper right-hand corner of each of the prints that is

shown there?

A. Yes, those are the indications of the ridge counts and

pattern types that are present in those fingers.

Q. When this fingerprint card was sent into the FBI lab,

was there any information that is in the lab record as to who

it might have been, who in particular to search for as

possibilities?

A. Well, this card would have been created by the lab, it

would have been --

Q. Excuse me, actually when the hands were sent in to

produce the fingerprint card?

A. Based on the work sheet from the original examiner there

was a phone call on the 2nd of March from Special Agent Wood.

Q. Is this a type of record that you normally keep in these

lab files?

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A. Yes. Any case that comes in the examiner works, they

keep a work sheet on what steps they have taken in that case.

Q. So at any time, for example if you are working on a case

when a call would be made in by the agent, you would make a

notation in the file reflecting that?

A. That's correct.

Q. In this case were these, were names provided as possible

comparisons that should be checked on as to who it might have

been?

A. In this case there was a phone call made stating that

these could possibly be an individual by the name of Donna Sue

Fiedler.

Q. Any other names other than Donna Sue Fiedler?

A. There were some aliases of that individual listed as

well. In fact, at a later time they submitted her fingerprint

card in the event we would need it for comparison purposes.

Q. Then was there a comparison done between Exhibit 40 then

and Exhibit 41?

A. Yes.

Q. Can you tell us what Exhibit 41 is again?

A. Exhibit 41 is a photograph of the fingerprint card that

was retrieved from our files based on the classification of

the fingerprint card created from the hands that were

submitted. So these are the cards from our files.

Q. At the time that the original comparison was made, was

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determination made that the prints in Exhibit 40 and 41 were

from the same individual?

A. Yes, there was.

Q. Who was that individual?

A. This card bears the name Anna Mae Pictou, and it was

recorded, the fingerprint identification listed an individual

Anna Mae Aquash.

Q. That known card, was that a card that was actually made

during a processing in the Marshals office?

A. This would have been the card that was made when she was

fingerprinted at some time, yes. I would need to refer to

when exactly it was recorded.

Q. Is the date reflected on the card?

A. I have a hard time seeing it on the screen. Looks like

September 5, 1975.

Q. Were you also able to conduct your own examination and

do a comparison between the two sets of prints?

A. Yes.

Q. In your opinion was the original conclusion correct that

these were the same individual?

A. Yes.

MR. MANDEL: I have no further questions, Your

Honor.

THE COURT: Cross exam.

MR. RENSCH: No questions, Your Honor.

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THE COURT: Thank you, Ms. Edwards, you may step

down. Call your next witness.

MR. McMAHON: The United States calls Darlene

Nichols.

DARLENE NICHOLS,

called as a witness, being first duly sworn, testified and

said as follows:

DIRECT EXAMINATION BY MR. McMAHON:

Q. Would you state your name, please?

A. My name is Darlene Nichols, most people call me Kamook.

Q. Where were you born?

A. I was born in Scotts Bluff, Nebraska.

Q. Where did you grow up?

A. In Pine Ridge, South Dakota.

Q. Did you go to high school in Pine Ridge?

A. I went to high school part of the time at Marty, South

Dakota, and at Pine Ridge.

Q. Where do you live now?

A. New Mexico.

Q. When were you first exposed to the American Indian

Movement ?

A. In February of 1972.

Q. How did that come about?

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A. The American Indian Movement came to Pine Ridge, they

were protesting how the death of Randy Yellow Thunder had been

handled.

Q. How old would you have been at that time?

A. Seventeen.

Q. Would you have graduated yet from high school?

A. No.

Q. Between what years would you have been in school, were

you a junior, senior?

A. I was a junior in high school.

Q. So were there some meetings held that you attended?

A. Yes.

Q. How many meetings did you go to, do you remember?

A. That night there was one at the high school gymnasium

and I went to that meeting.

Q. Were there more meetings within the days following that,

or was there just one?

A. Yes.

Q. Did you attend those other meetings also?

A. Yes.

Q. Did you meet any of the people affiliated with AIM that

were there for those meetings?

A. Yes.

Q. Who did you meet?

A. I met Dennis Banks, Russell Means, I met Leonard

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Peltier.

Q. So you would have finished school for the year some time

that spring I am assuming?

A. I finished school in December, had all the credits I

needed to finish school, and then officially graduated in May

of 1973.

Q. But the meetings we were talking about were during your

junior year, right?

A. Right.

Q. So you would have finished the school year that spring,

that would have been your junior year?

A. Yes.

Q. Then you went back to high school the next fall?

A. Yes.

Q. Did I understand you correctly then that you actually

finished your course work in December?

A. Yes.

Q. December of what year?

A. 1972.

Q. Then the rest of your class finished in the spring of

'73?

A. Yes.

Q. And that is when you actually got your diploma?

A. Yes.

Q. When you finished your classes in December of '72, tell

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us what you did after that?

A. I traveled to Oklahoma and spent a couple of weeks with

my aunt. Dennis contacted me, I moved back to Rapid City, and

resided here.

Q. Why did you go back to Rapid City?

A. Dennis called me. He made arrangements for me to fly

back up here and he would pick me up at the airport.

Q. Talking about Dennis Banks?

A. Yes.

Q. Had you and he started some type of a relationship

before that time?

A. Yes.

Q. When you flew back up to Rapid City after he called you,

were you with him continually after that then?

A. Yes.

Q. Did you live together?

A. Yes.

Q. Did you eventually have children together?

A. Yes.

Q. How many children did you have together?

A. Four.

Q. How long were the two of you together?

A. Seventeen years.

Q. You separated when?

A. In April of 1989.

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PAGES 116 to 130

PAGE 116

Q. When was it that you traveled to Rapid City to join

Mr. Banks?

A. In January of 1973.

Q. Where did the two of you go after that?

A. Well, we lived here, and then they were having the

hearings and we lived in Rapid City, and February 6 was the

Custer riot.

Q. February 6 you said was the Custer riot, what do you

mean by that?

A. Well, there were several hundred people in Custer

protesting the death of Wesley Bad Heart Bull.

Q. Was Dennis Banks arrested as a result of that?

A. Eventually.

Q. Were you down there at Custer also?

A. Yes.

Q. Other members of AIM down there?

A. Yes.

Q. What happened of any significance after the Custer

incident?

MR. RENSCH: Objection, relevance, Your Honor.

THE COURT: Overruled.

A. After Custer was Wounded Knee.

BY MR. McMAHON:

Q. What do you mean by Wounded Knee?

A. We went to Wounded Knee, there were several hundred

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people there, February 23.

Q. It started February 27?

A. Yes.

Q. Was that an occupation of Wounded Knee that you are

talking about?

A. Yes.

Q. Was it an armed occupation?

MR. RENSCH: Objection, leading, Your Honor.

THE COURT: Sustained.

BY MR. McMAHON:

Q. Were you at Wounded Knee?

A. Yes.

Q. Were there weapons present?

A. Yes.

Q. How long did the occupation last?

A. Seventy-one days.

Q. Were you there the whole time?

A. I was there until April 27, my uncle Buddy LaMonte, he

was my mom's brother, and he got killed.

Q. At Wounded Knee?

A. Yes.

Q. Did you leave then?

A. Yes.

Q. Did you ever go back?

A. We went back approximately a week and a half later

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because we buried him at Wounded Knee.

Q. Do you know someone by the name of Anna Mae Aquash?

A. Yes.

Q. When did you first meet her?

A. I met her when she came to Wounded Knee with her husband

Nogeeshik.

(Exhibit 14 marked For identification.)

BY MR. McMAHON:

Q. I have laid in front of you what has been marked I think

Exhibit 14, would you look on the back of that for me, please?

A. Yes, this is 14.

Q. You recognize that?

A. Yes.

Q. What is it?

A. It is a picture of Anna Mae.

Q. Anna Mae Aquash?

A. Yes.

Q. Is that what she looked like when you met her at Wounded

Knee in 1973?

A. Yes, it is.

MR. McMAHON: Offer Exhibit 14, Your Honor.

MR. RENSCH: No objection.

THE COURT: Exhibit 14 is received.

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BY MR. McMAHON:

Q. What did you do after the events at Wounded Knee ended?

A. We left Wounded Knee, Dennis and I went to Salt Lake

City, Utah.

Q. Why did you go to Salt Lake City?

A. Because Dennis was hiding from the FBI.

Q. We have got the picture up of Anna Mae. Where was she

from?

A. Nova Scotia.

Q. Was she a member of a particular tribe?

A. Mik'maq.

Q. Did she have any children?

A. Yes.

Q. How many?

A. Two.

Q. Were they daughters or sons?

A. Two girls.

Q. Did you ever meet them?

A. No, not during that time I never met them.

Q. You know how old they were?

A. They were approximately eight and ten.

Q. Let's get back to your trip to Salt Lake City. Had

Dennis Banks been charged with any criminal offenses as a

result of Wounded Knee?

A. Yes.

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Q. Is that why you were on the run?

A. Yes.

Q. How long did you stay in Utah?

A. We were there for a couple of months.

Q. Did Mr. Banks eventually go to trial on those charges?

A. Yes.

Q. And where did that take place?

A. In St. Paul, Minnesota.

Q. How long did that trial last?

A. From January of 1974 through August.

Q. Of 1974?

A. Yes.

Q. I am going to jump ahead a little bit. Well, before I

do, did you stay up in St. Paul for the whole trial with him?

A. Yes.

Q. Was Anna Mae Aquash ever there?

A. Yes.

Q. How much of the time was she there?

A. She lived in that area.

Q. And between the time that you first met her at Wounded

Knee in 1973, and then through that trial, did you see her off

and on at different AIM functions?

A. Yes.

Q. Did you and she become friends?

A. Yes.

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Q. Now I want to jump ahead to June of 1975.

A. Okay.

Q. Did you attend a national AIM convention anywhere at

that time?

A. Yes.

Q. Where was it at?

A. In Farmington, New Mexico.

Q. Approximately how many people attended that?

A. Maybe three hundred.

Q. Was Mr. Banks with you?

A. Yes.

Q. Was Anna Mae there?

A. Pardon?

Q. Was Anna Mae there?

A. Yes.

Q. Were there other leaders of the AIM movement there?

A. Yes.

Q. Who were some of those people that were there?

A. Clyde Bellecourt, Vernon Bellecourt, Larry Anderson,

Leonard Peltier.

Q. What was the purpose of having this get-together?

A. It was a AIM convention that had been organized.

Q. Was that something that was done yearly?

A. Pretty much, it was in different locations.

Q. Were there different AIM chapters around the country?

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A. Yes.

Q. Was this the type of gathering that was used for members

of the different chapters to get together?

A. Yes.

Q. You mentioned that Anna Mae Aquash was there. Were

there any rumors going about, going around about her at that

point in time?

MR. RENSCH: Objection, hearsay, Your Honor.

THE COURT: Overruled. Simply asking if there were

rumors. Overruled, go ahead.

A. Yes.

BY MR. McMAHON:

Q. Was it being discussed openly, these rumors?

A. Yes.

Q. What were the rumors that were going around?

MR. RENSCH: Objection, hearsay.

THE COURT: The requested testimony is hearsay, but

I am going to admit it for a limited purpose only, this is a

limiting instruction. It isn't admitted nor received for the

truth of the matter stated. In other words, whether the rumor

is true or not. It is simply received as to what the rumor

was. So it is limited to what the rumor was, it is not

admitted for the truth of the statement as to whether the

rumor was true or not. So with that limiting instruction,

which in part grants the objection, but the objection beyond

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that is overruled.

MR. RENSCH: I would also like if I could to object

on the grounds of 403 as well. And relevance.

THE COURT: Overruled.

BY MR. McMAHON:

Q. Go ahead and answer the question, Ms. Nichols, as to

what the rumors were?

A. Yes.

Q. What were those rumors?

A. That she was an informant.

Q. What was her demeanor in Farmington, New Mexico?

A. She was upset. She was very quiet.

Q. Did she act frightened?

A. Yes.

Q. Was she ever confronted with these allegations that she

was an informant?

A. Yes.

Q. Who confronted her?

A. Leonard Peltier.

Q. What happened?

MR. RENSCH: Objection, personal knowledge, Your

Honor.

THE COURT: Sustained as to foundation.

BY MR. McMAHON:

Q. Did the confrontation you were going to talk about occur

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in Farmington, New Mexico?

A. Yes.

Q. You were there?

A. Yes.

Q. Were people talking about the confrontation after it

occurred?

A. Yes.

MR. RENSCH: Objection, hearsay, Your Honor.

THE COURT: Overruled.

BY MR. McMAHON:

Q. Was it being openly discussed by everyone?

A. Yes.

Q. Was it common knowledge among all the people down there?

MR. RENSCH: Objection, leading and argumentative.

THE COURT: Sustained as to form.

BY MR. McMAHON:

Q. Did you hear the discussions about what had happened?

A. Yes.

Q. What did you hear?

MR. RENSCH: Objection, hearsay, relevance, 403.

Also confrontation clause.

THE COURT: The objection is sustained in part,

overruled in part. Once again what this witness heard is

admitted not for the truth of the matter stated, but simply

for the fact of whatever was being stated. And so that's a

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limiting instruction again similar to the last one, because it

is hearsay, but it is admissible for a limited purpose only.

Overruled to that extent. You may proceed.

BY MR. McMAHON:

Q. You may answer the question. Do you remember what it

was? It was what did you hear that took place in the

confrontation?

A. I heard that he had taken her away from the camp in a

car and had put a gun to her head, and that he wanted to know

if she was an informant.

Q. Did you hear what her response was?

A. Yes.

MR. RENSCH: Same series of objections, and may I

have a continuing objection along these lines, Your Honor?

THE COURT: Yes. Granted in part, overruled in

part. This is once again hearsay, and not received for the

truth of the matter stated. You may respond.

MR. RENSCH: Your Honor, can we approach for one

moment, please?

THE COURT: You may.

(Bench Conference)

MR. RENSCH: Your Honor, at this point I would

request the government to specify the purpose for offering

such testimony. In the ruling that you made and the

instruction to the jury it sounds as though the Court has said

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to the jury that the information will not be received for the

truth of the matter asserted, and then it almost was as if the

jury had been instructed that it could be received for

whatever was said, and from that standpoint to protect the

record I would request of the government to tell us the

purpose of that statement so I can protect the record.

THE COURT: Anything you want to say?

MR. McMAHON: Well, I don't think I have to state

any purposes for offering that type of evidence. It is

clearly not being offered for the truth of the matter stated.

It is not hearsay for that purpose. I think that's the end of

the --

MR. RENSCH: In the way the questions are framed

there could be no other reason other than the fact that this

happened.

THE COURT: Well, it seems to me this has to do with

the state of mind of Aquash and what she was doing.

MR. McMAHON: It is not Mr. Peltier that is on

trial.

MR. RENSCH: I want to say the foundation hasn't

been laid that this is what Ms. Aquash had in fact said, and

thus it wouldn't be in the present impression or any exception

to the hearsay rule on the basis of broad news.

THE COURT: You made your record.

MR. RENSCH: Thank you.

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(End Bench Conference).

BY MR. McMAHON:

Q. Kamook, I think we were talking about the exchange that

had taken place, the confrontation, and I believe the question

that was pending was what Anna Mae Aquash, what her response

was to the confrontation. You can go ahead and answer.

A. She told him that if he believed that, he should go

ahead and shoot her.

Q. She wasn't shot, was she?

A. No.

Q. In June of 1975 did your relationship with Anna Mae

Aquash change at that time?

A. Yes.

Q. Why?

A. Because my, I was told that she had a relationship with

Dennis.

Q. Dennis Banks?

A. Yes.

Q. Where did you go after the conference in Farmington was

completed?

A. Back to Oglala.

Q. Oglala is on the Pine Ridge Reservation?

A. Yes.

Q. Were you and Mr. Banks living there?

A. Yes.

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Q. And this would have still been in June?

A. Yes.

Q. I am going to call your attention to June 26, 1975, were

you on the Pine Ridge Reservation on that day?

A. Yes.

Q. Why do you remember that day specifically?

MR. RENSCH: Objection, relevance, 403, and personal

knowledge.

THE COURT: Overruled -- relevance and what?

MR. RENSCH: 403 and personal knowledge.

THE COURT: Overruled.

BY MR. McMAHON:

Q. Why do you specifically remember that day?

A. Because there was a shoot-out where we live.

Q. A shoot-out?

A. Yes.

Q. What did you do that day?

A. That morning my, I had one daughter, she had asthma, so

that morning she was sick, and I got up early and I took her

in to Pine Ridge to the hospital.

Q. Was that a daughter that Mr. Banks was the father of?

A. Yes.

Q. So you went to the hospital. After that where did you

go?

A. Pardon?

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Q. Where did you go from the hospital?

A. Well, at the hospital they told me that she wasn't going

to be better later in the day, that I needed to take her to

Gordon, Nebraska to the doctor. So I went to look for my mom

to go with me, and they said she was in Oglala at a class. So

I drove to Oglala to look for my mother at Woman Day School,

and they said she had just left. So I left the school and was

driving south, and when I came up onto the highway where you

could see our house I saw --

MR. RENSCH: I hate to interrupt, can I have a

continuing objection so I don't need to keep objecting as to

what happened on June 26, 1975 on the grounds previously

stated?

THE COURT: Which is 403.

MR. RENSCH: Relevance, and personal knowledge.

THE COURT: You have your objection with regard to

June 26, and overruled, but you do have one with regard to

those bases with regard to that date.

MR. RENSCH: Thank you, I won't interrupt any more.

BY MR. McMAHON:

Q. Go ahead, Ms. Nichols?

A. I was driving down the highway, and I saw cop cars

turning in to our property. And so I looked to the right and

I saw them lined up in the fields way over here, so I turned

in to see what was going on. And when I pulled up to where

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our house was, the grass was maybe three or four feet high in

front of our house, and I saw a couple hands come out of the

weeds and just waving for me to go back. So I made a U-turn

and drove back out to the highway.

Q. Did you hear anything?

A. As I was driving away I could hear shooting.

Q. What had happened that day?

A. Two FBI agents and got killed.

Q. Where were you in July of 1975?

A. In Custer.

Q. Why were you in Custer?

A. Dennis was on trial for the Custer charges.

Q. Were you there for the whole trial?

A. Yes.

Q. Where did you stay?

A. At the Bavarian Inn.

Q. Was Mr. Banks convicted of some of those charges?

A. Yes.

Q. Did Anna Mae Aquash ever attend any of the trial?

A. Yes.

Q. Did she ever show up at the motel?

A. Yes.

Q. Were there ever any allegations made against her while

she was at the hotel?

A. Yes.

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Index

PAGES 131 to 145

PAGE 131

Q. Could you tell me what those were?

MR. RENSCH: Objection, hearsay.

THE COURT: Sustained in part, again a limiting

instruction. It is hearsay, at least on the basis of the

record that we have at this point, and it is not received for

the truth of whether or not those things were in fact said,

and so it is so limited.

BY MR. McMAHON:

Q. Go ahead and answer the question. You don't remember

the question you look like?

A. Yes, the allegations were made.

Q. What were the allegations that were made?

MR. RENSCH: Objection, foundation, time and place,

who was present.

THE COURT: Sustained.

BY MR. McMAHON:

Q. Were you present when the allegations were made?

A. Yes.

Q. Was that at the hotel?

A. Yes.

Q. What was the allegation that you heard?

A. Dennis and myself and my daughter were in our room when

Crow Dog came in.

Q. Who was that?

A. Leonard Crow Dog. He came in and he was very angry. He

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was yelling, and he told Dennis that he had kicked Anna Mae

off of his property, she was a fed, he didn't want her on his

property.

Q. She was a fed, is that what you said?

A. Yes.

Q. Where is Mr. Crow Dog's property?

A. In Rosebud, South Dakota.

Q. Why was Anna Mae there?

A. At Crow Dog's?

Q. Yes.

A. She had been camping down there.

Q. Was that a place where a number of AIM members camped?

A. Yes.

Q. You stated that Mr. Banks was convicted of some of the

charges. Was he let out on bond after the trial?

A. Yes.

Q. Do you remember when he was supposed to report back for

his sentencing?

A. September 5th.

Q. Where did you go after the trial?

A. We went to Crow Dog's.

Q. So that is the same place that Anna Mae had been

staying?

A. Yes.

Q. What was going on at Crow Dog's when you went there?

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A. We were getting ready for the sundance.

Q. Were there often sundances held there?

A. Annually.

Q. What time of the year was the sundance this year in

1975?

A. The first week of August.

Q. Is that usually when it was?

A. Yes.

Q. So were you there just for the sundance, or were you

camping there also?

A. We were there camping for the sundance.

Q. How long did you stay at Crow Dog's?

A. Maybe a week.

Q. Camp there the whole time?

A. Yes.

Q. Where were you living permanently at that time?

A. Our residence had been Oglala before that.

Q. So you still had the home in Oglala?

A. Well, at the time then we were just camping because our

home had been pretty much destroyed after the shoot-out.

Q. So the sundance took place in August you said?

A. Yes.

Q. You were there for about a week or so, is that what you

said?

A. Yeah, we camped about a week.

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Q. Where did you go after that?

A. To Colorado.

Q. Why did you go to Colorado?

A. Because we were hiding from the government.

Q. When you say we went to Colorado, who went?

A. Dennis, Leonard Peltier, myself, my sister Barbara

Roubideau.

Q. Did Dennis Banks go back for his sentencing at Custer?

A. No.

Q. Is that why you were hiding in Colorado?

A. Yes.

Q. I call your attention to September 5, 1975. Were you

still in Colorado, or were you back by then?

A. No, we left the day before.

Q. Had you returned to South Dakota from Colorado prior to

that -- let me back up. How long were you in Colorado?

A. For a few weeks.

Q. After you left Colorado, where did you go?

A. To Parmalee, South Dakota.

Q. When did you go to Parmalee?

A. Maybe the middle of September, before the end of

September.

Q. Were you back in South Dakota at all prior to September

5th of 1975?

A. I don't think so. Well, September 5th is when he was

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supposed to be sentenced.

Q. Where were you at on September 4th?

A. At Crow Dog's.

Q. So you were still at Crow Dog's for the sundance?

A. Yes, we left Crow Dog's the day before he was to be

sentenced.

Q. So the sundance I thought you said was in August, but

you were still there at the first part of September?

A. Yes.

Q. How do you remember that you left on September 4th?

A. Because part of Dennis', the conditions were that he

needed to call in every day to the Sheriff's office and report

while we were there. So he used to call in every day, and

then the day before sentencing, the night before he said that

he wasn't calling the next day and we were leaving.

Q. So you left, and is that when you left for Colorado

then?

A. Yes.

Q. I am sorry, I was confused. So did you hear of anything

happening on September 5th then?

MR. RENSCH: Objection, hearsay, confrontation

clause, 403, and relevance.

MR. McMAHON: I will rephrase it. Your Honor.

THE COURT: Very well.

BY MR. McMAHON:

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Q. Did you hear of a law enforcement raid at Crow Dog's on

September 5th?

A. Yes. Can I say that it was August 5th is when Dennis

was supposed to report actually. I am sorry.

Q. We are confused here again, let's go back. What day was

he supposed to report for sentencing?

A. August 5th.

Q. What day did you leave for Colorado?

A. August 4th.

Q. So then when did you return from Colorado?

A. Then toward the end of August.

Q. So you were back in South Dakota then after you came

back from Colorado?

A. Yes.

Q. Where did you come to after?

A. To Parmalee.

Q. So that's when you went to Parmalee?

A. Yes.

Q. How long were you at Parmalee?

A. A couple of weeks.

Q. You were around the Pine Ridge Reservation and Rosebud

Reservation then at that time?

A. Yes.

Q. When did you leave again?

A. Soon after September 5th.

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Q. So you were where on September 5th of 1975?

A. I was in Pine Ridge.

Q. And where is Parmalee in relationship to Leonard Crow

Dog' s ?

A. Maybe thirty miles away. It is not far.

Q. Did you become aware of a law enforcement raid at Crow

Dog's on September 5th?

A. Yes.

Q. What did you find out had happened on that day?

A. That they had come and raided his property and several

people had been arrested.

Q. Who had been arrested?

A. Anna Mae, Leroy Casados, Dino Butler.

Q. You said you left again shortly after September 5th. Do

you remember what day that would have been?

A. It was just the next day, it was soon after. It was a

few days after, because once we went back to Parmalee we

stayed there for a few days, and then Bob Roubideau suggested

we leave because there were a lot of helicopters and stuff

flying around.

Q. So did you leave South Dakota then?

A. Yes.

Q. Who did you leave with?

A. It was Bob, my sister, Keith DeMarias, Norman Charles,

Jean Roach, and myself and my daughter.

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Q. Was Dennis Banks with you?

A. No.

Q. Where had he gone?

A. I am not sure where he was at the moment.

Q. Where were you heading?

A. To Oklahoma.

Q. Where in Oklahoma?

A. Shawnee.

Q. Is that where your aunt lives?

A. Yes.

Q. What happened on the way?

A. While we were traveling, at night we left the Rosebud or

Parmalee at night, we were having trouble with our muffler on

our car, so we stopped in Valentine and we had the muffler

checked, and we kept driving and the next day we were on the

Kansas Turnpike by Wellington.

MR. RENSCH: At this point I object to relevance,

she is narrating, also 403 as it relates to this case.

THE COURT: Overruled.

A. And we were driving down the Interstate, and our car

started smoking, and we pulled over, and we all jumped out of

the car and it exploded.

Q. The car exploded?

A. Yes.

Q. Why did it explode?

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A. Because there was dynamite in there.

Q. You were carrying dynamite?

A. Yes.

Q. Did you get arrested?

A. Yes.

Q. Were you taken to jail?

A. Yes.

Q. Where at?

A. In Wichita.

Q. How long were you in jail?

A. About three weeks,

Q. Then did you get bonded out?

A. Yes.

Q. Where did you go after you bonded out?

A. Tulsa, Oklahoma.

Q. Where did you go from there?

A. I came back to South Dakota.

Q. Why did you come back to South Dakota?

A. My Grandma was having a memorial dinner for my uncle.

Q. The uncle that was killed at Wounded Knee?

A. Yes.

Q. When was it that you came back to South Dakota for that

memorial?

A. In October.

Q. Did you have an occasion to meet up with Dennis Banks

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again then?

A. Yes.

Q. How did that come about?

A. I was at the dinner which he had held at Wounded Knee,

it was outside. A couple people came over to me and said to

me that when it is over that I just needed to go with them.

Q. Did you do that then?

A. Yes.

Q. Where did you go?

A. To Oglala.

Q. Where did you go in Oglala?

A. To the Hill house.

Q. Who was there?

A. It was Dennis and Leonard and Dave Hill and then me.

Q. Dennis Banks?

A. Yes.

Q. Leonard Peltier?

A. Yes.

Q. Dave Hill you said?

A. Yes.

Q. And Anna Mae?

A. Yes.

Q. What did you do then?

A. It was in, it was late already, we got there and Dave

and Leonard took Anna Mae in to the adjoining room and they

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were making her make bombs.

Q. Why were they doing that?

A. For the sake of the fingerprints being on the bomb.

Q. What was going do be done with the bombs?

A. There was discussion about where these bombs would be

placed in Pine Ridge.

Q. Were they placed somewhere then?

A. Yes.

Q. Were you there when they placed them?

A. Yes.

Q. Who placed the bombs?

MR. RENSCH: Objection, relevance, 403.

THE COURT: Overruled.

A. Dave Hill and Leonard got out of the car and told Anna

Mae to get out with them, and they laid the bombs by the two

power plants in Pine Ridge.

BY MR. McMAHON:

Q. Where did you go from there?

A. To Chadron, Nebraska.

Q. Why did you go to Chadron?

A. There was a motor home there that we were going to pick

up.

Q. Did you pick up the motor home?

A. Yes.

Q. Did you travel in the motor home then?

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A. Yes.

Q. Who was in the motor home?

A. It was Leonard Peltier, Dennis, my sister, my daughter,

Anna Mae, Kenny Loud Hawk, and Dave Hill.

Q. Why was Anna Mae along?

A. I think Anna Mae was there because Dennis and Leonard

were watching her.

Q. Where did you go?

A. We traveled to Montana, but we spent a couple days

because the weather was really bad, we couldn't travel, and

then we went to Washington state.

Q. Where did you go in Washington state?

A. To John Chiquiti's.

Q. Was that a friend?

A. Yes.

Q. Did he have a ranch, or a home, or something there?

A. He owned a home that was isolated out in the country.

Q. Did you camp there?

A. Yes.

Q. How long did you stay there?

A. Probably a few weeks.

Q. Who was camping there?

A. Dennis, Leonard, my sister and myself, my daughter, Anna

Mae, Kenny Loud Hawk.

Q. Were you there because you were hiding?

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A. Yes.

Q. Did you ever leave there with your sister?

A. Her and I had court in Kansas, and we left at one point

and we flew back for the court hearing, and she decided to

stay there, so I returned to Washington.

Q. While you were camping in Washington state, was Anna Mae

allowed to leave by herself?

A. No.

Q. Was she always being watched?

A. Somebody always went around with her.

Q. Were there any allegations or accusations made toward

her while were you camping in Washington state?

A. Yes.

Q. Who made those?

A. Leonard.

Q. Did you hear him?

A. Yes.

Q. What did he say?

MR. RENSCH: Objection, hearsay.

THE COURT: I am sorry, what?

MR. RENSCH: Hearsay.

THE COURT: It is hearsay. It is not received for

the truth of the matter stated, but with that limitation it is

received into evidence. You may answer.

BY MR. McMAHON:

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Q. What did Mr. Peltier say?

A. He said that he believed she was a fed, and that he was

going to get some truth serum and give it to her so that she

would tell the truth.

Q. While you were camping in Washington, were there any

discussions had in which you and Anna Mae were present in

which sensitive material that you wouldn't have wanted in the

hands of law enforcement was discussed?

A. Yes.

Q. Give me an example?

MR. RENSCH: Objection, hearsay.

THE COURT: Overruled.

A. We were sitting one day at the table in this motor home.

Anna Mae was sitting by me and my sister was on the other

side, and Dennis was standing in the aisle, and Leonard was

sitting on this side, he alternated between sitting and

standing. And he started talking about June 26, and he put

his hand like this and started talking about the two FBI

agents.

Q. What did he say?

MR. RENSCH: Objection, more prejudicial than

probative. And hearsay.

THE COURT: Well, that is overruled. But what he

said is hearsay, but it is received not for the truth of the

matter stated, received only for a limited purpose, go ahead.

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BY MR. McMAHON:.

Q. Tell the Court as best you remember exactly what he

said?

A. Exactly what he said.

Q. Exactly what he said?

A. He said the motherfucker was begging for his life, but I

shot him anyway.

Q. Had you ever heard that before?

A. No.

Q. Where did you go when you left Washington?

A. We started traveling south on the Interstate.

Q. Would that take you in to Oregon?

A. Yes.

Q. What happened when you got in to Oregon?

A. We got stopped by the Highway Patrol.

Q. What happened when you were stopped by the Highway

Patrol?

MR. RENSCH: Same series of objections, more

prejudicial than probative, relevance, and 403.

THE COURT: Overruled.

A. They made us, it was one officer, and he made us get out

of the motor home.

Q. Did everyone get out of the motor home?

A. No.

Q. Who stayed in?

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A. Dennis.

Q. What did he do?

A. He drove away.

Q. What happened after that?

A. He started shooting him, him and the officer were

shooting at each other as he was driving away.

Q. Did he get away?

A. Yes.

Q. Where was Mr. Peltier?

A. He initially was laying beside me on the ground.

Q. What did he do?

A. He started running for the fence, and the officer shot

him as he was going over the fence and he ran away.

Q. So did he get away too?

A. Yes.

Q. What happened to the rest of you?

A. We went to jail.

Q. That would have been you?

A. It was myself and Anna Mae, Kenny Loud Hawk and Russell

Red Earth, and my daughter.

Q. Who did you share a jail cell with?

A. Anna Mae.

Q. You had testified earlier that the two of you hadn't had

much contact. Did that last up until the time that you were

in that motor home together?

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A. Until the night I saw her at Loud Hawk's.

Q. Now you were in a cell together?

A. Yes.

Q. So when you were in the cell together did you have an

occasion to visit with each other?

A. Yes.

Q. What was Anna Mae's state of mind at that time?

A. She was upset. She was crying. She was afraid, but she

was, I knew what she was afraid of, because I knew she had

already been arguing with the cops up to that point, telling

them they should, while we were in the ditch they should put

me in the car because I was pregnant, I had a little girl, it

was cold outside. So she wasn't afraid of them, but yet she

was scared, and I knew that she was scared of Leonard and

Dennis at that point.

(Exhibit 27 marked For identification.)

BY MR. McMAHON:

Q. I would like you to look at that picture I just put in

front of you. Would you look at the number on the back and

tell me what the Exhibit No. is, please?

A. 27.

Q. What is that a picture of?

A. Anna Mae.

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Q. Is that what she looked like when you were arrested in

Oregon?

A. Yes.

Q. Do you know when she cut her hair?

A. No.

Q. How long were the two of you in jail together?

A. Probably a couple of weeks.

Q. Where were the two of you taken after you left jail?

A. They put us on a plane and they flew us back to Wichita

together, and the Marshals came and met us at the airport, and

they took me back to jail and they brought her to South

Dakota.

Q. Why did they take you back to jail?

A. Because I wasn't supposed to have left Kansas and I had

traveled back to Washington. So when I got arrested in

Washington they returned me back to Kansas.

Q. Do you know why Anna Mae was brought to South Dakota?

A. Because there was a bench warrant on her up here.

Q. Was that stemming from the September 5th arrest?

A. Yes.

Q. Did you ever see Anna Mae alive again?

A. No.

Q. When did you find out she was dead?

A. On February 24th.

Q. Would you like some water?

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A. Thank you.

Q. How do you remember it was February 24th?

A. Because Dennis called me.

Q. Dennis Banks?

A. Yes.

Q. How did you relate that call to the date of February

24th?

A. Because he was in San Francisco, I was in Portland,

Oregon. We had, in the house we lived was our office, and

when he called I was sitting at the desk and I was speaking to

him before he told me this, I looked at the calendar and it

was my nephew's birthday, and I was remembering it was my

nephew's birthday and I needed to call him, and Dennis told me

they had found Anna Mae.

Q. That's February 24, 1976?

A. Yes.

Q. You testified earlier that you and Mr. Banks were no

longer together?

A. Right.

Q. I don't remember if I asked you what year was it that

you separated?

A. April of 1989.

Q. How many children did you have together?

A. Four.

Q. At some point in time did you decide to cooperate with

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the law enforcement people in their investigation of Anna

Mae's death?

A. Yes.

Q. Why did you decide to do that?

A. Because I believed that from the day he called me I

started always believing that it was the American Indian

Movement that had something to do with it, because of the

conversations I had heard throughout the time before I got

arrested. And I came here that summer, and I was in the area

for four months and in that time I visited different people I

learned what happened to her.

Q. How did it come about that you got in contact with law

enforcement people about this?

A. We contacted Jim Graf and had a meeting with him in

Minneapolis.

Q. Was this your idea, or did the FBI contact you?

A. They didn't contact me, I called them.

Q. So you voluntarily came forward?

A. Yes.

Q. What types of things have you done besides tell what you

knew about what happened, what else have you done to help in

the investigation of this matter?

A. I have talked to several people that were involved in

Anna Mae's death.

Q. Did you talk to Troy Lynn Yellow Wood at any time?

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A. Yes.

Q. Did you record that conversation with the help of the

FBI?

A. Yes.

Q. Did you have an occasion then to visit with the

defendant Arlo Looking Cloud and Troy Lynn Yellow Wood?

A. Yes.

Q. Was that a separate occasion?

A. Yes.

Q. Did you record that conversation with the help of the

FBI?

A. Yes, I did.

MR. McMAHON: Your Honor, at this time I would like

to stop my questioning and recall her at a later time to go in

to that portion of it.

THE COURT: Very well. Do you wish to examine at

this time with regard to this testimony, or do you want to

reserve your examination until the testimony is completed?

MR. RENSCH: I would like to examine at this time if

I could, Your Honor, relative to what she has said thus far.

THE COURT: Very well.

CROSS EXAMINATION BY MR. RENSCH:

Q. Ma'am, if I ask you a question that appears or seems to

be confusing, would you stop me so that we can understand each

other?

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A. Yes, I will.

Q. How old are you?

A. Forty-eight.

Q. What type of education do you have?

A. I graduated high school. I went to school in

California, I got an Associate of Arts degree in Native

American studies, and went on to school at UC Davis in

California.

Q. What degree did you get there?

A. I was in my third year there when Dennis and I moved

because he was fighting extradition, we left and moved to New

York.

Q. What do you do for a living?

A. I am a casting director, I work on movies.

Q. How long have you been a casting director?

A. Since June of 1989.

Q. How many movies have you worked on?

A. Maybe thirteen or fourteen.

Q. What are some of the movies you have worked on?

A. Pardon.

Q. What are some of the movies you have worked on?

A. I did casting on Dances With Wolves, I have worked on

Last of The Mohicans, I have worked on several TNT

productions. I worked on Mohammed Ali movie, I did casting

for some Tony Hillerman movies.

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Q. In your job have you met movie stars?

A. Yeah.

Q. Who are some of the movie stars you have worked with?

A. Kevin Costner, I have met Gene Hackman, Daniel Jay

Lewis. Didn't always meet the actors when they came to the

movies, sometimes they didn't, just depended.

Q. In working with these movie sets and things of that

nature have you come to know the movie industry somewhat?

A. Yes.

Q. How so?

A. Well, I think I came to know it pretty well. It was

what I did.

Q. Did you ever come in to contact with writers in the

movie industry?

A. I know who the writers were, they didn't always come to

location.

Q. You have met some writers because of your occupation in

the movie industry, haven't you?

A. I don't know that I met them. Sometimes, you know. Tony

Hillerman came to our movie location, he wrote the book that

the movie is based on. A screen play has been rewritten, I

didn't meet the people that wrote. He was there, I didn't

make a point of meeting him. I didn't make a point of meeting

the writer. They are not usually on location.

Q. So there is a person who writes the book that a movie is

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made out of?

A. Pretty much.

Q. Then there is another person who writes the screen

adaptation to it, is that how it works?

A. No, the person writes the book and then there is the

person who changes it in to a script.

Q. Have you met people who have changed books in to

scripts?

A. No.

Q. Do you know who those people are because of your being

involved in the movie industry?

A. If I looked on my crew list I might know who they are,

but I don't. I work with the extras and the producer and the

director, so I don't normally work with the writer, that is

not my job.

Q. You also know from being involved in the movie industry

that there is a lot of money to be made if a movie is

successful, isn't that true?

A. If it is successful, yeah, I am sure.

Q. Millions and millions of dollars if it is successful,

right?

A. Yeah.

Q. You worked on Dances With Wolves, isn't that true?

A. Right.

Q. Tens of millions of dollars if a movie is successful,

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isn't that true?

A. I heard it is true.

Q. How much do you make a year right now?

A. It depends.

MR. McMAHON: Objection to relevance.

THE COURT: Sustained.

MR. RENSCH: Like an opportunity to make an offer of
proof.

THE COURT: You can.

MR. RENSCH: Could we break now and do that, and I

could continue with this witness.

THE COURT: We are close enough to noon, we will do

that now. Remember what I told you before, don't talk to each

other about the case, don't do outside research, don't talk to

each other, don't make up your mind now, because you haven't

heard all the evidence yet. We will be in recess until 1:15.

Please stand for the jury, counsel to stay.

(Jury Leaves).

THE COURT: Out of the presence of the jury.

MR. RENSCH: May I ask some questions in the form of

an offer of proof, Your Honor?

THE COURT: Yes.

MR. RENSCH: How much money do you make in a year,

Ma' am.

A. It depends on the movie and the budget of the movie, it

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differs.

Q. Let's talk about the year 2003, how much money did you

make in 2003?

A. I am only trying to remember which movie it was, I am

sorry.

Q. Just the whole year, 2003, all the money that you made?

A. Probably not very much that year.

Q. Well, are we talking, can you give us a ballpark on an

amount ?

A. Okay, we are talking about last year.

Q. Yes.

A. Probably only about maybe $20,000.

Q. And in the five years prior to that time what is the

most you made in any one year?

A. Maybe thirty five.

Q. $35,000?

A. Maybe.

MR. RENSCH: Your Honor, at this point I would rely

on this as an offer of proof and request the opportunity to

inquire about it in front of the jury to establish a possible

bias in the testimony in light of the fact that there is a

great deal of money that can be made if one were to write a

book or write a screen play about this subject which has so

very much interest in our country, and from that standpoint it

could color her testimony. In support of that I would tell

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the Court that it is the theory of the defense that these

matters, well, should be brought in to question. And the

motivation for testifying has been opened by the government in

its direct examination by asking why did you come in and tell

the FBI these things, and from that standpoint her bias would

go into the theory of the defense, and we would request an

opportunity to use this information to secure my client's fair

trial rights, his right to confront and cross examine a

witness, and his due process rights.

THE COURT: Well, what does the government have to

say about that?

MR. McMAHON: Your Honor, he has laid no foundation

that she is going to make one nickel off of this. Anybody

that is sitting in the courtroom can write a book. It is

totally fictitious, and it is just a smoke screen, if you

will. He has made no connection whatsoever with her

employment and the fact that she decided to come forward and

tell what she knows about a murder case.

THE COURT: Alright.

THE WITNESS: Can I say something.

MR. McMAHON: No, unless the Judge wants you to.

THE COURT: You can if you want to. I am ready to

rule, but you can if you want to.

THE WITNESS: That I now need to change my career

and look for further different employment, because casting is

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not something that I would be able to do from this point on.

THE COURT: Why is that?

THE WITNESS: Because I have come forward with this

information.

THE COURT: Alright, thank you. Well, first of all,

frankly, counsel for the defense, I don't think you knew what

the answers were going to be. Of course that is

understandable because you don't get the benefit of

depositions in a criminal case like you do in a civil case,

and so I think we had a little discovery that went on here as

to what she earned. I think you thought the figures would be

a lot bigger. So to argue that she is going to write a book,

well, casting doesn't have anything to do with writing, and it

hasn't been shown she has any ability to write a book. If she

were going to, she could have before this. So I don't think

that -- you know, you can certainly inquire in to her motive

in front of the jury for coming forward, but I think this one

is a wild goose chase. You can go in to motive, but I don't

think you have shown anything here. So your offer of proof is

received, but I don't think it has established anything.

Anything further?

MR. RENSCH: Not from me.

MR. McMAHON: Not from me, Your Honor.

THE COURT: We will be in recess until 1:15.

(Recess from 12:00 until 1:15).

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THE COURT: Please be seated. Since we have been

talking about hearsay a little bit, and so for the guidance of

counsel and for the record, as to the general talk or

knowledge at Farmington, New Mexico at the AIM convention,

that Anna Mae Aquash was being considered by the AIM members

there generally to be a fed or an informer, and Ms. Nichols

was in the middle of all that as she was with Mr. Banks, as

well as apparently active in her own right at that time. Now

that's not hearsay, although I have limited its use, but then

from what the government claims they are going to prove, the

specific things said to the deceased Anna Mae Aquash by

persons other than the defendant, those go to, as I see it,

the decedent's state of mind, and ultimately whether Anna Mae

Aquash voluntarily went from Denver to Rapid City, stayed in

Rapid City, then to Rosebud, then on to Pine Ridge where she

was murdered. And given that they were all riding in a little

Ford Pinto during all of that time, what she would have

manifested is relevant and material, but I am going to read

now from an October 9, 2003 Eighth Circuit Court of Appeals

opinion. United States versus Malik, M-A-L-I-K. It is 345

F.3rd 999, the case starts, and at page 1001 the Court said

Malik contends the statement of the informant relayed to the

jury through the testimony of the police officers were

hearsay, highly prejudicial and not relevant. "When the

out-of-court statement has relevance when we only consider the

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effect it had on those who heard or read it, not whether the

statement was true or not, but just its effect on those who

heard it, then the statement is not hearsay." That's G.

Michael Fenner, THE HEARSAY RULE 31, 2003, that book. See

also Federal Rules of Evidence 801. For example, an out of

court statement is not hearsay if it is offered, not for the

truth of the matter asserted, but instead to explain the

reasons for or propriety of a police investigation. So bring

in the jury, please.

MR. RENSCH: May I say something.

THE COURT: Yes.

MR. RENSCH: I would like to indicate to the Court

that I am going to in cross examination delve in to some of

the areas I objected to, and the reason for that is I have to

delve in to those, and I would like the opportunity to do so

without waiving my objections to the previous evidentiary

objections on that.

THE COURT: Is that a statement, or a question?

MR. RENSCH: A little bit of both. I just want a

spot I can cite to to preserve in the record the reason I am

going to be asking certain questions that deal with the

matters I have objected to are because I have to deal with

those now, and I don't want to waive any appellate right.

THE COURT: Well, that's your choice. I mean there

is no objection before me, and what ever you do with your

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record, you know, that's up to you. I thank you for the

information, but that is all there is to it.

MR. RENSCH: Thank you, Your Honor.

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

(Jury Enters)

THE COURT: You may proceed.

BY MR. RENSCH:

Q. Ms. Nichols, as of September of last year isn't it true

that you had received approximately $24,000 in moneys or

services from the government in this case?

A. Yes.

Q. And you have also been told that living expenses for you

will be paid for a period of time into the future, is that not

so?

A. No.

Q. How much money have you received so far in the year 2004

from the federal government in connection with your

cooperation in this case?

A. $25,000.

Q. This year you have, the year 2004?

A. 2004, yes.

Q. How did you receive that, was it by way of a check?

A. It was in my bank.

Q. Is $25,000 a lot of money to you?

A. No.

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Q. It is not a lot of money to you?

A. Because in the business I work in I can make that kind

of money in a couple of months.

Q. How long does it take you to make $25,000?

A. Well, when I worked on a big budget movie if my salary

is $2,200 a week, then it takes a couple of months.

Q. Last year, for example, were you employed the entire

time?

A. No.

Q. How many movies did you work on last year?

A. Two.

Q. How much did you make on each one?

A. Total, they pay you per contract, it was only $9,000.

There that was for PBS.

Q. Was that for each movie you worked on, or was that total

what you made?

A. That was total.

Q. So if it takes you a year to make $9,000, it seems to me

that $25,000 would be quite a lot of money, would you agree?

A. No.

Q. Do you value having $25,000?

A. Well, it covers expenses to where I needed to move to.

Q. Have you taken any steps to write a book or anything

like that?

A. No.

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Q. Do you have an agent ?

A. No.

Q. Have you contacted somebody to possibly be your agent in

the future?

A. No.

Q. Do you have plans to write a book?

A. No.

Q. Do you have plans to sell your story?

A. No.

Q. Could plans change at some point in the future do you

think?

A. No.

MR. McMAHON: I object, speculation.

THE COURT: I will let the answer stand. Ask your

next question, overruled.

BY MR. RENSCH:

Q. How many children do you have, Ma'am?

A. Four.

Q. These are children you had with Mr. Dennis Banks?

A. Yes.

Q. How old are they?

A. 19, 23, 28 and 29.

Q. And you were with Mr. Banks from what, 1972 to about

1989?

A. Yes.

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Q. Did you love him?

A. Initially.

Q. How long did you live with him without loving him?

A. About three years.

Q. So you loved him until about 1986?

A. Yes.

Q. Do you have a criminal record of any sort?

A. At the moment I can apply for a job and put no.

Q. Have you ever been convicted of a felony?

A. Yes.

Q. How many times?

A. Once.

Q. How long ago?

A. In 1976 or '77.

Q. Is that something that you, does that arise out of some

of these acts you testified to on direct?

A. Yes.

Q. Which one of them?

A. From when our car blew up in Kansas I was charged with

possession of firearms. I was on probation for three years.

Q. Were you charged in Federal Court or in State Court?

A. I think federal.

Q. Has anybody talked to you about helping you get that off

of your record in connection with this case?

A. You mean the charges from back in 1976?

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Q. Yes.

A. It was already removed from my record when I completed

the probation. I was under 23 and they told me then the law

says that when you complete your probation without any

violations your record is expunged?

Q. And you were good friends with Ms. Pictou-Aquash,

weren't you?

A. Yes.

Q. The best of friends?

A. She was a very good friend of mine.

Q. You have told people that she was your best friend in

the past, have you not?

A. She was when she lived with me.

Q. What year was it that she lived with you?

A. In 1974.

Q. 1974. Okay. In 1974 you loved your husband Dennis

Banks, didn't you?

A. Yes.

Q. Now what year did you learn then that Ms. Pictou-Aquash

was having a sexual relationship with your husband?

A. In 1975.

Q. What month?

A. June.

Q. That would have been approximately the time of the

Farmington, New Mexico matter, is that right?

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A. Yes.

Q. You were angry with Ms. Pictou-Aquash, weren't you?

A. When I learned about it I was.

Q. That hurt you when you found out that your best friend

would have sex with your husband, didn't it?

A. Yes.

Q. Is it funny?

A. No. I mean it would hurt anybody I think, so it didn't

just hurt me.

Q. Were you angry at your husband for that too?

A. Yes.

Q. As you went on through your relationship with Mr. Banks

and you continued being married to him, did this situation

with Ms. Pictou-Aquash still bother you?

A. At different times.

Q. The fact that she was with your husband?

A. Yes.

Q. In fact, it bothered you up to 1986, didn't it?

A. No, probably not that long.

Q. Do you hate your husband, your ex-husband Dennis Banks?

A. No.

Q. Do you want to hurt him?

A. No. He is just the father of my children.

Q. You would never want to do anything that would hurt the

father of your children?

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A. I would never do anything that would hurt him because he

is the father of my children.

Q. Of course if were you to hurt him, that would hurt your

children, would you agree?

A. Pretty much.

Q. So you wouldn't want to do anything to hurt him because

it could hurt your kids?

A. My children are, have been my life since I have had

them.

Q. Is there a part of you that wants to use

Ms. Pictou-Aquash to hurt your husband?

A. No.

Q. The way that he hurt you?

A. No.

Q. By using her?

A. No.

Q. You went into your husband's house wearing a wire and

questioned him about these matters, didn't you?

A. We never discussed Anna Mae.

Q. You went into his house wearing a wire to record what he

said, didn't you?

A. Nothing about Anna Mae.

Q. Did you wear a wire to record what he said?

A. Yes.

Q. When did you do that?

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A. In October I think of 2002.

Q. Now back when you were with Dennis Banks in the early

seventies, let's start with 1972, that was a volatile time for

the American Indian Movement, wasn't it?

A. Yes.

Q. You saw many things that were crimes, didn't you?

A. In 1972?

Q. The early seventies?

A. No.

Q. How about 1975, did you witness any crimes in 1975?

A. Just that I traveled with them and we were fugitives.

Q. You told the jury that you were present when some bombs

were placed by the power plant in Pine Ridge?

A. Yes.

Q. We can agree that's probably a crime?

A. Yes.

Q. You were present when people were making

Ms. Pictou-Aquash make bombs, weren't you?

A. Yes.

Q. You helped make bombs, didn't you?

A. No.

Q. You never touched them?

A. I never touched those bombs.

Q. You never touched any bombs?

A. I touched a piece of dynamite that was not attached to a

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bomb.

Q. What were you doing that for?

A. Because Leonard was teaching us how to make the bombs.

Q. When you were in the American Indian Movement and when

you saw these things, you didn't go to the police and tell

anyone about them, did you?

A. No.

Q. Why not?

A. Well, at the time I was committed to the Movement, and I

believed in what the movement stood for at the moment.

Q. What happens if you disagreed with what was going on,

could you keep quiet about things?

A. What happens if I disagreed right then?

Q. Yes.

A. I never talked to anybody about anything.

Q. So in the American Indian Movement in 1975 when you

would see something that was illegal or that you didn't agree

with, you would keep quiet, wouldn't you?

A. Yes.

Q. Because you can't always know how people are going to

react if you say something, isn't that true?

A. I just didn't talk about it, didn't think about what

people were going to react to.

Q. It could be dangerous if you would have tried to step in

and change things as they were occurring for you back then,

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couldn't it?

A. I never thought about stepping in to change anything

back then.

Q. In the motor home incident up in Oregon, is it your

testimony to this jury that Ms. Aquash was basically being

held captive that whole time?

A. She, when she traveled to the store she was always with

somebody, if she went shopping she was with somebody. She was

never alone.

Q. Well, were you with her when she was away?

A. I never traveled with her to the store.

Q. So if you were not with her when she was away, how do

you know whether or not she was left alone?

A. Because my sister was with her.

Q. And was your sister sent to be along with her to keep an

eye on her?

A. My sister and Leonard traveled with her to the store.

Q. What is your sister's name?

A. Bernie Nichols.

Q. Did you ever have to watch Anna Mae during this time?

A. No.

Q. You never had to keep an eye on her at all?

A. No.

Q. And it is your position before this jury that she wanted

to get away and no one would let her go, is that right?

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A. She told my sister she asked to go home and they told

her she couldn't.

Q. Well, were you there when she said that?

A. No.

Q. So you don't know for sure if she said that, do you?

A. My sister told me.

Q. But your sister was one of the people who was watching

her, wasn't she?

A. My sister was traveling with her. They never directly

said to my sister we are going to go to the store and you keep

an eye on her.

Q. No one ever directly said to you that someone was to

keep on eye on Ms. Pictou-Aquash, isn't that true?

A. No, it was never said to me.

Q. And you never heard anyone other than your sister

recount possibly what Ms. Pictou said other than her, you

never heard anyone tell another person to make sure to keep an

eye on Ms. Pictou-Aquash, did you?

A. Not in Washington.

Q. Okay. Did you at any point out there on the West Coast

hear anybody say that they should keep an eye on

Ms. Pictou-Aquash?

A. No, they just did. She was never alone.

Q. No one told you that they were keeping an eye on

Ms. Pictou-Aquash for any reason, did they?

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A. No.

Q. So when you tell this jury they were keeping an eye on

her so that she couldn't leave, you are making an assumption,

aren't you?

A. If that is what I believe, I believe that that is what

was going on.

Q. You are telling us what you believe, right?

A. Yes.

Q. But you are not telling us that you observed that, are

you?

A. I never observed that.

Q. As you were watching what happened out there as you are

with these fugitives, and you yourself were a fugitive,

weren't you?

A. When I was in Washington state?

Q. Yes?

A. Yes.

Q. Okay, meaning you missed a court appearance?

A. Right.

Q. You were on the federal firearms charges, or explosives

charges?

A. Right.

Q. So at this time you were a fugitive. During that period

of time did you believe then that she was being held captive?

A. I believed that she would not have been, if Dennis and

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Leonard didn't want her to be there.

Q. I appreciate that's what you believe, but my question to

you is did you believe that she was being held captive as you

were with her out there and you were all in the motor home?

A. She was never tied up or anything in that capacity of

being captive.

Q. Did you believe that she was being held prisoner, or her

freedom of movement was being restricted as you were with her

during that time period?

A. I think if she wanted to leave there would have been an

incident.

Q. Were there any instructions given to anybody in your

presence about what would happen if she tried to leave?

A. No.

Q. Did you ever see her try to leave?

A. No.

Q. Did you ever see her make any phone calls asking someone

to come and pick her up?

A. No.

Q. Did she ever ask you for help in trying to leave?

A. No.

Q. During this period of time were you her friend?

A. Yes.

Q. But during this period of time you thought she wouldn't

have been able to leave if she wanted to, correct?

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A. I think if she tried to leave something would have come

up.

Q. With all that in mind, you also tell this jury that your

husband at that time felt she was an informant, is that true?

A. I believe that.

Q. And you have also told this jury that Leonard Peltier

felt that she was an informant, isn't that true?

A. Yes.

Q. And these are dangerous people, aren't they. Banks and

Peltier?

A. Once Leonard made the disclosure, then, yeah, I realized

what he had done, then, yeah, you could say he was a dangerous

person.

Q. And if he thought that somebody was not with him, is it

your testimony to this jury that they could be in danger?

A. If they were not with him?

Q. Yeah, if they were an informant against him?

A. Yeah.

Q. So as he said that, did you think that Ms. Pictou-Aquash

was in danger from him while you were all in the motor home

together?

A. I realized she was scared once we left.

Q. Did you do anything to help Ms. Pictou-Aquash in her

predicament in the motor home?

A. We were living in the motor home.

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Q. I know. Did you do anything to make it so that she

could leave?

A. No.

Q. Why not?

A. She never asked to leave.

Q. Did you do anything prior to the time that you found out

that she was dead to help her in any way in light of the fact

that people thought she was an informant?

A. No.

Q. Why not?

A. Because I didn't know who did this to her.

Q. But you have told us that as you were married to him you

had an idea that your husband did this to her?

A. I assumed that he knew who did this to her.

Q. And you assumed that when he told you that a body had

been found on February 24, isn't that correct?

A. He told me it was Anna Mae that had been found on

February 24.

Q. It was at that point you put the two and two together,

is that right?

A. That's when I started thinking about it.

Q. At that point did you do anything at all to alert

anybody about your suspicions?

A. No.

Q. Is part of that because when you are in the American

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Index

PAGES 176 to 190

PAGE 176

Indian Movement and things go wrong around you, it could be

dangerous if you go talk about it?

A. Would I feel danger if I killed somebody, is that what

you mean?

Q. No. My question is part of the reason you didn't try to

help the authorities in finding the perpetrator of this murder

because you were afraid that if you talked you could be in

trouble yourself?

A. I never thought about going to talk to somebody. I was

going to school at the time, I was raising my children, that

was my priority.

Q. Back in the AIM days in say 1975, people who were

involved in AIM, if they saw things happen that could be

considered illegal, was it your experience that they would go

tell the authorities about those things?

A. I knew Doug Durham had gone to the authorities, but he

is the only person I knew about.

Q. Doug Durham was a paid FBI operative, though, wasn't he?

A. Yeah.

Q. Other than the FBI operatives who were planted in the

American Indian Movement as moles, was it your experience that

the members would go talk to the authorities about crimes that

they may have observed?

A. I never knew anybody that went to the authorities.

Q. If somebody went to the authorities after observing

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something, they could be in trouble, couldn't they, would you

agree with that?

A. Well, I don't know that.

Q. When were you in Custer when you heard Leonard Crow Dog

say that Anna Mae was an informant and that she could be

kicked out of the place?

A. While Dennis, it was in July while Dennis was on trial

up there.

Q. Of 1975?

A. Yes.

Q. Leonard Crow Dog you are telling this jury then in July

of 1975 didn't want Ms. Pictou-Aquash anywhere near him

because he thought she was a fed, is that right?

A. He said he didn't want her near him or on his property.

Q. Yet she was arrested on his property on September 5th,

was she not?

A. No.

Q. Where was she on September 5th?

A. She was at Diane and Al Runnings property.

Q. Was she ever at Crow Dog's property after that?

A. I don't know, she wasn't with me.

Q. But you were at Crow Dog's property for a period of time

after that, weren't you?

A. I went there, that's where we were for the sundance.

Q. What was it she was arrested for on September 5th, do

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you know?

A. I don't know.

MR. RENSCH: Nothing further at this time.

THE COURT: Any redirect examination on these

points?

MR. McMAHON: Yes, Your Honor.

REDIRECT EXAMINATION BY MR. McMAHON:

Q. Ms. Nichols, since it was brought up, would you tell the

jury exactly how much you have received in financial

assistance from the federal government total?

A. $42,000.

Q. Was part of that for your expenses for traveling?

A. Well, when I found this information out in 2000 and I

would travel around, like when I went to visit Troy Lynn in

Denver, I paid all my own expenses, and there was actually

several months before I asked could I get reimbursed, and I

would send them my receipts and for that I got reimbursed, but

I initially put up my own money.

Q. In addition to that have there been two lump sum

payments made to you?

A. Yes.

Q. What were they for?

A. A year ago I was contacted about my security and my

safety, and we discussed where I lived, and that I maybe

needed to move to a more secure location in New Mexico, so it

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was for that.

Q. So the first payment was to move you to the secured

location?

A. Right.

Q. Because of your involvement in this case?

A. Yes.

Q. What was the second lump sum payment for?

A. Well, Dennis Banks learned where I lived the first time,

so it was to move to a different location.

Q. So that was for the same reason?

A. Yes.

Q. You were asked some questions about whether you had seen

any crimes committed and then failed to report them. Did you

ever help tie anyone up?

A. No.

Q. You ever help haul anyone around the country side tied

up?

A. No.

Q. Did you ever stand there while somebody was murdered?

A. No.

MR. McMAHON: That's all I have.

RECROSS EXAMINATION BY MR. RENSCH:

Q. But you did hold dynamite that was going to be used to

blow something up, didn't you.

A. No, I didn't hold it.

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Q. Then why did you plead guilty to possessing it?

A. Because that was the plea bargain arrangement that was

made.

Q. And you did stand by while people placed bombs near

power plants, right?

A. I was in the car while they were placing them.

Q. But you didn't do anything to help them plant those

bombs, did you?

A. No, I didn't help them plant them.

Q. Because of that you didn't do anything wrong in planting

the bombs, did you?

A. No, I was in the car.

MR. RENSCH: Thank you?

MR. McMAHON: Nothing further.

THE COURT: Thank you, you may step down. Call your

next witness.

MR. McMAHON: We call Mathalene White Bear, Your

Honor.

MATHALENE WHITE BEAR,

called as a witness, being first duly sworn, testified and

said as follows:

DIRECT EXAMINATION BY MR. McMAHON:

Q. Would you state your name, please?

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A. My name is Mathalene White Bear.

Q. Where do you live?

A. I live in El Monte, California.

Q. How long have you lived in California?

A. About 46 years.

Q. How old are you now?

A. Forty-nine.

Q. So you grew up in California?

A. Yes, I did.

Q. Were you a member of AIM?

A. Yes, I was.

Q. What was your involvement with AIM?

A. In what context?

Q. Well, when did you become a member of the AIM movement?

A. When I turned eighteen.

Q. And what types of activities did you partake in?

A. Shelter mainly.

Q. Did you travel around the country to different events?

A. Yes.

Q. Did you have an occasion to meet someone by the name of

Anna Mae Aquash?

A. Yes, I did.

Q. When did you meet her?

A. I believe it was in 1974.

Q. Do you remember where it was?

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A. Yes, I do. We were at a sweat lodge, we had met at a

sweat lodge.

Q. Where was that?

A. Hacienda Heights, California.

Q. Did you have occasion to see her after that?

A. Yes, I did.

Q. Where at?

A. The AIM house in Venice Beach, and then my own apartment

in Santa Monica, and then my parents home in Baldwin Park and

then in El Monte.

Q. Let's focus on 1975. Was there an occasion when she

came to see you in 1975?

A. Yes, there was.

Q. When was that, approximately?

A. It was September, the first part of fall. September,

around in there.

Q. Were you still living with your parents at that time?

A. Yes, I was.

Q. How old would you have been then?

A. About 20; 19, 20, somewhere around there.

Q. How old would Anna Mae have been then?

A. About thirty.

Q. Why did she come to visit you?

A. She was seeking refuge, and looking for help.

Q. What was she seeking refuge from?

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A. She didn't get too specific, but she was afraid of

threats that had been made on her life.

Q. Did you have any conversations with her in which she

indicated she was being accused of being a government

informant?

A. Yes, I did.

Q. Was she scared?

A. Angry.

Q. Did she ever indicate to you that she was worried that

something might happen to her safety?

A. Yes.

Q. How long did she visit you in 1975?

A. It was a few weeks. I am not exactly sure of the exact

amount of days, but a couple of weeks, somewhere around there.

Q. This visit would have been after she was arrested in

South Dakota on weapons charges?

A. Yes.

Q. She was also, correct me if I am wrong, but wasn't she

also afraid of the FBI?

A. Yes.

Q. What type of conversations did the two of you have with

each other concerning her safety?

A. Well, the conversations that Anna Mae and I had mainly

had to do with her family, her daughters, and messages she

wanted me to give to her daughters. And they also consisted

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of her being afraid for her well being, and she was worried

about my safety and not letting me know too many details. She

wanted to clear up whatever the problem was, and she asked me

pretty much to be ears for her and try to, you know, if I

heard anything or whatever. And otherwise just to stay back

and not get myself in any deeper.

Q. Did the two of you make any types of arrangements

whereby she could signal you if she was in danger?

A. Yes, we did.

Q. What was that arrangement?

A. Okay, there came a point where she had to leave, and I

didn't want her to go, but she had to leave, and my mother and

I helped her disguise her, cut her hair and dressed her

differently, and she left my home, but before she left my home

she gave me some messages for her daughters. And then she

showed me a ring, and it was a very unusual ring, silver, and

a sort of an S filigree shape. And she told me, she gave me a

phone number also, okay, and she told me 'that hopefully the

next time I seen that ring it would be on her finger, but if

it were to come to me another way, then what I was to do was

to call that phone number.

Q. Do you know whose phone number it was?

A. At the time I wasn't really sure.

Q. Did you find out?

A. Yeah.

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Q. Whose was it?

A. John Trudell.

Q. Who is John Trudell?

A. John Trudell is a brother of ours, he was very good to

both of us.

Q. Was he involved in the AIM movement?

A. On the level of being a spokesperson.

Q. I have laid Exhibit 27 in front of you. That is a

picture of Anna Mae, correct?

A. Yes.

Q. Is that what she looked like when she was in California?

A. I cut her hair.

Q. You said she left, do you recall approximately when she

left?

A. The end of September, first part of October, somewhere

around in there.

Q. Did she tell you why she was leaving?

A. She was going underground is what I was told.

Q. Did you later hear from her at all?

A. Yes, I did.

Q. A letter, phone call, what was it?

A. I received three phone calls from her.

Q. Can you give us a timeframe of when the first one might

have been?

A. The end of September, first of November, somewhere

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around in that area somewhere.

Q. Around the first of November?

A. Somewhere around there, yeah.

Q. Tell us what she told you during that telephone call?

A. She was okay, she was with a couple, and they had given

her a room, and she was just waiting for word as to where she

was supposed to go next.

Q. Did she say where she was calling from?

A. At the time, no, she didn't. She, we had a code name at

that point, and she didn't give any information other than she

was okay, and she asked how my family was doing, how I was

doing, and that was about it.

Q. Then you said you received a second phone call, when was

that?

A. Maybe a week or two later.

Q. Tell us about that telephone call?

A. She was a little more upset, a little more distraught.

She said she felt like she was being caged in. The people she

was with had her afraid to go outside. They had her afraid

to, that she was being watched is the feeling she got. You

know, they were being watched closely, and for her own safety

they kept her in doors, and she felt like she was being

trapped almost.

MR. McMAHON: Your Honor, I offer Exhibit 27.

MR. RENSCH: No objection.

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

PAGE 187

THE COURT: Exhibit 27 is received.

BY MR. McMAHON:

Q. When was the third phone call?

A. About, it was within a week, a week of that, or it came

sooner than the space between the other two.

Q. So are we somewhere around the first part of December,

in that area now?

A. Yeah, it would be in that area, that time of the year.

Q. Do you know where she was calling from at that time?

A. We had received a phone bill from her previous, collect

calls, because she had called collect and they were from

Colorado.

Q. Any particular place in Colorado?

A. Denver.

Q. Tell us what was said during the third telephone call?

A. She was scared. She was being trapped, she knew

something was going wrong, and I offered to go get her or to

find a way to go get her, or to do something, and she said we

will see about that, and she told me have you heard from

anyone? And I told her no. And she says tell my, something

to do with tell my or something, and then the phone went dead.

Q. The phone went dead? Did you ever talk to her again?

A. No.

Q. Are you ready to continue?

A. Yes, please.

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Q. Did you ever receive anything from her in the mail?

A. Yes. Within three, four days, something like that, I

got a little box in the mail, and there was no return address

on it, and when I opened it up, all that was in there was the

silver ring.

Q. That was Anna Mae's ring?

A. The one she had shown me.

Q. What did you do with the ring?

A. I just put the cover back on the box and I called the

phone number, and when John answered I just told him I

received the ring.

Q. What did do you after that?

A. Well, I waited and John was there within 24 hours to

pick the ring up, and then I spent 28 years of hell waiting to

find out what happened, the truth.

Q. Did you ever go to South Dakota?

A. I did go to South Dakota. It was in December, January,

I don't remember the exact dates.

Q. Why?

A. Well, a friend of ours was on trial, and I went to sort

of be moral support for him, and also to make my presence

known so that Anna Mae would know she had a friend here, and

if there was any way possible that she could get in touch with

me and I could see what I could do to help her.

MR. McMAHON: That's all I have, thank you.

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THE COURT: Cross exam.

CROSS EXAMINATION BY MR. RENSCH:

Q. You were present when Ms. Pictou-Aquash agreed to blow

up a building in Los Angeles, weren't you, Ma'am?

A. I never heard of any such thing.

Q. You have never told anybody that you heard that Anna Mae

agreed to blow up a building in Los Angeles after Banks

ordered her to do that?

A. No.

Q. As a loyalty test to Dennis Banks?

A. You mean for her to be loyal to Dennis Banks?

Q. Yes.

A. No.

Q. Did you tell Special Agent Alan Garber that on August

30th, 1981?

A. Not that I recall.

Q. Do you remember speaking to a member of the FBI in 1981?

A. Okay, there were two agents that I was led to believe

were special agents from the Canadian Mounted Police that I

spoke with. I never at any time agreed to speak with the FBI.

Q. Did you talk to somebody in 1981 about the happenings

surrounding when Anna Mae was with you in 1975?

A. The only people I ever spoke to about that were the two

special agents who came from the Canadian Mounted Police.

MR. RENSCH: Nothing further, thank you.

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PAGE 190

THE COURT: Anything further.

MR. McMAHON: I have nothing further, Your Honor.

THE COURT: Thank you, Ma'am, you may step down.

Call your next witness.

MR. McMAHON: Bob Riter.

BOB RITER,

called as a witness, being first duly sworn, testified and

said as follows:

DIRECT EXAMINATION BY MR. McMAHON:

Q. Mr. Riter, will you introduce yourself to the jury,

please?

A. Certainly. My name is Bob Riter, I am a lawyer in

Pierre.

Q. How long have you been practicing law, Bob?

A. I have been practicing law for thirty years.

Q. Sorry. Have you been in Pierre all that time?

A. Yes.

Q. You have an occasion to represent Anna Mae Aquash?

A. Yes.

Q. When did that come about?

A. I was appointed to represent her in September of 1975.

Q. What was the charge?

A. If I recall correctly, she was initially charged with a

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PAGES 191 to 205

PAGE 191

complaint for possession of a firearm with an obliterated

serial number, and then later there was an indictment and

there were two counts, one of which was that same count and

then one similar as far as a firearm, and I don't really

remember the other count.

Q. Do you remember when she made her first appearance?

A. She made her first appearance in early September. I

can't tell you right now the exact day.

Q. That's close enough. Was she let out on bond?

A. Yes.

Q. When she was let out on bond, I am assuming you had

discussions with her about her case prior to her leaving

Pierre?

A. Mr. McMahon, my position on this is that I have an

attorney/client relationship with her, and I don't believe

that I am in a position to testify as far as what she and I

discussed.

Q. I am not going there, I am just asking if you had

discussions?

A. Yes, I had discussions with her.

Q. As a part of those discussions, did she give you ways to

try to get in contact with her after she left?

A. I am sure she must have. I don't specifically recall

that at this time.

Q. I am assuming then that probably not right then, but

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after she was indicted there was an initial appearance date

set, or another appearance date set?

A. Yes, there was an arraignment.

Q. Was that set for November 10th?

A. Actually, no. The arraignment did occur in early

October, and she did appear for her arraignment in early

October.

Q. Was there another court date scheduled for November?

A. Yes, I believe it was. A motion hearing was scheduled

on November 10th.

Q. Did she appear for that?

A. No, she did not.

Q. Prior to November 10th and after she had made her

appearance in October, did you attempt to get in contact with

her?

A. Yes.

Q. How did you do that?

A. I guess you just asked me how. By mail. I also

attempted to contact her telephonically.

Q. I am assuming you had some type of a telephone number

for her?

A. You know, I don't know that I had a number for her.

Frankly, I had a number down in. Pine Ridge that I am not sure

it was her number, but it was a way to make contact with her.

Q. Were you ever able to speak with her prior to November

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PAGE 193

10th, after she had left Pierre I am talking about?

A. No.

Q. So from the time in early October when she made the

appearance for her arraignment, between then and November 10th

you weren't ever able to speak with her?

A. I do not recall having been in contact with her during

that period of time.

Q. Did you ever ask anyone to help you contact her?

A. Yes.

Q. Who?

A. I asked Bruce Ellison.

Q. Why did you ask Mr. Ellison to help you?

A. When the initial appearance occurred in early September,

Mr. Ellison was present. There were other attorneys present

as well. If I recall correctly there were a number of

defendants charged, and so there were quite a few attorneys

from Pierre like myself who had been appointed to represent

some of the other defendants. And as I sit here today I am

not sure if Mr. Ellison who had been appointed to represent

one of the defendants or was associated with the Wounded Knee

Legal Defense Fund.

Q. So prior to November 10th you weren't able to contact

her. Was Mr. Ellison able to help you get in contact with

her?

A. No.

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PAGE 194

Q. When was the next time you saw her?

A. The next time I saw her was on November 23.

Q. How do you remember it was November 23?

A. Well, in preparation for coming today I did look at my

file. I recall that she was brought back to South Dakota,

there was a trial scheduled for November 25, and I visited

with her the next time two days prior to that trial.

Q. Was she under arrest when she was brought back to South

Dakota?

A. Well, she was still I guess under arrest from the

initial information. I understand that she had in Oregon been

placed in custody, because she had not appeared earlier at her

hearing. I don't know if she was formally under arrest, I am

not sure of that.

Q. Well, she was in custody when she first appeared in

Pierre then?

A. Correct.

Q. Did she once again get out on bond?

A. Yes, she did.

Q. Did that surprise you?

A. Yes, it did.

Q. How did that come about?

A. On the 24th, the day before the trial was scheduled, I

recall correctly that there was a United States District Court

Judge from Virginia, or a southern state who was up here

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PAGE 195

handling some matters including this particular trial. There

were a number of attorneys in Pierre, many of them either

representing some of the other defendants about which I spoke

earlier, or some that I believe were associated with the

Wounded Knee Legal Defense Fund. And that day, the 24th when

I visited with my client, either right prior thereto or after

I had visited with her, it was suggested to me by one of the

attorneys, none of them, it was not an attorney from Pierre,

one of the other attorneys, that perhaps the Judge would let

her out on bond for preparation efforts for the trial the next

day, and also, frankly, so she could be better able to respond

the next day to the trial.

Q. You said it surprised you she was let out on bond, why

was that?

A. It surprised me because they had just picked her up in

Oregon and brought her back to South Dakota because she had

not appeared at a prior hearing. So I didn't anticipate that

they would do that, but if I recall correctly, we appeared in

front of the Court and made that request and the Court did

allow it.

Q. So she got out on bond again?

A. She got out on bond again on the 24th of November.

Q. Leading up to the 24th of November had the United States

made any offers for reduced charges in return for a guilty

plea?

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A. Yes, we had communication from the United States

Attorney's office regarding that.

Q. Did you send those on to Anna Mae?

A. I think that is asking for me to testify as regards

something that would be protected by the attorney/client

privilege as far as what was included in the correspondence I

sent her.

Q. Well, I am going to try to avoid that issue if we can.

Normally wouldn't you feel it was your obligation to

communicate plea offers to your clients?

A. Certainly.

Q. And do you normally comply with your ethical

obligations?

A. Certainly.

Q. Did you share any of those letters with any of the

attorneys for the other defendants?

A. I do not believe that I shared them with any of the

attorneys for any of the other defendants.

Q. Was one of those letters a letter that you gave to Bruce

Ellison to try to get it to Anna Mae?

A. No, I wrote Mr. Ellison a separate stand alone letter

where I told him that there was a hearing scheduled, that I

would appreciate his help in seeing what he could do to get

her to appear at the time of the hearing, because I wasn't

confident myself at the time that she was going to be there on

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November 10th.

Q. Once Anna Mae was let out on bond again, that would have

been November 24th?

A. Correct.

Q. Of 1975?

A. Correct.

Q. Her trial was scheduled for the following day?

A. Correct.

Q. Did you ever see her again?

A. I may have seen her at the St. Charles Hotel, because a

number of these attorneys who were from out of state were

staying up at the St. Charles Hotel. It was kind of a

strategy room up there that was being used to discuss

witnesses and evidence and testimony that might be presented.

As I sit here I do not have a clear recollection of seeing her

up at the St. Charles Hotel, but my expectation would have

been that after she got out she did come up there, but I don't

remember that.

Q. And if you would have seen her at the St. Charles Hotel

in Pierre, that would have been on the 24th some time?

A. That's correct. I should say, Mr. McMahon, I don't mean

to volunteer, but in response to your earlier question I am

confident that on the 24th I also told the U.S. Attorney's

office that we were going to trial, there had not been any

plea arrangement.

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PAGE 198

Q. So then the trial was set for the following day,

November 25, 1975. Did she show up to go to trial?

A. No, she did not.

Q. Did you ever see her again?

A. Never did.

Q. Ever hear from her again?

A. Never.

MR. McMAHON: That's all I have.

MR. RENSCH: No questions.

THE COURT: Thank you, Mr. Riter, you may step down.

Well, just about time for a mid afternoon break, we might as

well take one five minutes early. Remember what I told you

before, don't talk about the case with each other, don't make

up your minds until all the evidence is in. We will be in

recess for fifteen minutes.

(Recess at 2:25 until 2:40).

THE COURT: Call your next witness, please.

MR. MANDEL: United States would call Raymond

Handboy.

RAYMOND HANDBOY,

called as a witness, being first duly sworn, testified and

said as follows:

DIRECT EXAMINATION BY MR. MANDEL:

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Sioux Falls, South Dakota 57104 (605) 330-4877

PAGE 199

Q. Sir, would you state your name, please?

A. Raymond Handboy.

Q. How is your last name spelled, sir?

A. Spell it?

Q. Yes?

A. H-A-N-D-B-0-Y.

Q. All one word?

A. Yes.

Q. What do you do for a living. Ray?

A. I work for IHS, Indian Health Service.

Q. Is that here in Rapid City?

A. Yes.

Q. How long have you been working for them?

A. Sixteen years.

A. Were you formerly married to Evelyn Bordeau?

A. Yes.

Q. Can you tell me what year the two of you got married?

A. Repeat that?

Q. What year were the two of you married?

A. 1977, I think.

Q. How long were you married?

A. Four years.

Q. Back in 1975 were you already going with Evelyn Bordeau?

A. Yes.

Q. At that time did she have some involvement in the

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PAGE 200

American Indian Movement?

A. Yes, I believe she did, yeah.

Q. To the extent you know, what was her involvement?

A. I think she just knew a lot of people in the movement.

Q. What about you, yourself, did you have any involvement

in it?

A. Me?

Q. Yes.

A. No, not really, no.

Q. When did the two of you initially get together?

A. I met her in '75.

Q. In September of '75 were you already together?

A. Yes.

Q. In September of '75 did she ask you to take a trip to

Pierre at some point?

A. Yeah, we --

Q. Excuse me, I misstated that, I meant November?

A. November, yes. Yes, she did.

Q. Was that toward the end of November of '75?

A. I think it was toward the end, we were wintery out and

snowing.

Q. Do you remember how that came about, sir?

A. I just came home from work one day and she said she, she

asked me if I wanted to take a drive, and I said doing what?

She said we need to give someone a ride. I said sure, let's

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PAGE 201

do it.

Q. When you say you came home from work, where were you

working back then?

A. I was working at the Elsworth Air Force base part time,

and at the Central Fair Grounds here in Rapid.

Q. Did she tell you who you were taking for a ride?

A. No, I didn't know until we got over there.

Q. Did she tell you where you were riding to?

A. She said we are going to Denver.

Q. Was that the first stop you made?

A. Yes.

Q. Did you go to Pierre before you went to Denver?

A. Yes.

Q. Do you remember what time of day you headed out for

Pierre, sir?

A. It was in the evening, when we got over there in Pierre

it was dark. It was about 10:00 or something like that, I

think.

Q. Where did you go when you got to Pierre?

A. We went to a hotel. There was a hotel, but there was a

gas station across from the hotel. At least I thought it was

a hotel, and I parked across the street in the gas station.

It was closed, it was pretty late when we got there. Evelyn

went into the hotel and she came out with Anna Mae.

Q. Was that the St. Charles Hotel?

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PAGE 202

A. I think so, I think that is what it is called, yeah.

Q. When Evelyn came out of the hotel did she introduce you

to the person you were giving a ride to?

A. Yes.

Q. What was her name?

A. Anna Mae.

Q. I have handed you Exhibit No. 27, a photograph, do you

recognize the individual in that photograph?

A. Yes.

Q. Who is that?

A. That is Anna Mae.

Q. After I take it she got into the car then?

A. Yes.

Q. Who was seated where, who was driving?

A. I was driving. We stopped and got gas I think at a

station going over the bridge before we leave Pierre, and we

filled up, and they wanted to go straight south to route 90,

then we were supposed to go to Murdo, I think it is, and then

south past Rosebud in to Nebraska to route 80. They wanted to

hit 80 and go west to Denver.

Q. So you were taking Highway 83 down to Highway 80?

A. Yes, I think that's the road.

Q. What time of night was it when you left there?

A. It was late, probably 11:00 or 12:00. It was pretty

late I know. I don't know exact time, but it was late.

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Q. After you gassed up you were driving?

A. Yes.

Q. Where were they seated?

A. In the back.

Q. Both of them?

A. Yeah.

Q. Was there anyone else with you?

A. No.

Q. Was there any discussion as to why you were doing this?

A. No.

Q. So you took off down the road during the -- first of

all, did you drive all the way down to Denver from there?

A. Yes.

Q. Straight through overnight?

A. Yes.

Q. You drink a lot of coffee while were you doing it?

A. Oh, yeah. Off and on we would stop at a truck stop and

get coffee and then drive on.

Q. How long did it take you to drive down there?

A. Probably about six hours or more, because it was pretty

bad out. The roads were pretty rough.

Q. During the course of the drive was there any

conversation?

A. Oh, they were talking, but I couldn't really hear what

they were saying because I was just paying attention to

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PAGE 204

driving.

Q. So you weren't able to listen to any of the

conversat ion?

A. No.

Q. What happened when you got to Denver, sir?

A. They kind of indicated they knew where they were going

to me. I didn't know anything about Denver or the city, and

first time I ever been there, but they knew where they wanted

to go, and they just told me where to go, and I just drove.

And when we got to where she wanted off, we stopped and we let

her off, and they got out and they hugged each other. And I

just asked her do we have enough money to get back, and she

goes yeah, so we started out.

Q. Just turned around and headed back up to Rapid City?

A. Yes.

MR. MANDEL: I have no further questions, Your

Honor.

CROSS EXAMINATION BY MR. RENSCH:

Q. Afternoon, sir.

A. Hello.

Q. You have been interviewed before about this by Robert

Ecoffey, haven't you?

A. Pardon.

Q. Have you ever been interviewed by Bob Ecoffey about this

situation?

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PAGE 205

A. Yes.

Q. How long ago was that, do you recall?

A. Probably in the spring.

Q. Looks like there is a report here from a March 13 of

1996, could he have talked to you quite a while ago about all

this?

A. He might of, but I don't really remember that.

Q. Is it possible that Ms. Pictou-Aquash said to your wife

on this trip down to Denver that when she was in Pierre that

the FBI had threatened her?

A. No, I didn't hear nothing like that.

Q. Didn't hear anything at all like that?

A. No.

Q. Never said anything like that to you?

A. No.

Q. Or to your wife in your presence?

A. She wouldn't talk to me, she mostly talked to my wife

Evelyn at the time.

Q. Mostly Anna Mae was quiet on the trip down?

A. Yeah, they just talked about their families, you know,

the kids and stuff. I heard them talking about that when they

first started out. Then after that I couldn't. If they did

say things it didn't mean nothing to me, so I didn't pay

attention.

Q. You don't recall talking then to Mr. Ecoffey back in

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PAGES 206 to 220

PAGE 206

1996?

A. You know, he probably did, but I don't remember.

Q. So the lady who becomes your wife says Ray, let's go to

Pierre and let's go to Denver and that is no problem to you?

A. No, of course not.

Q. Nothing out of the ordinary about something like that?

A. No.

Q. As you went down there you didn't know really the

purpose of the trip or anything like that, did you?

A. No.

Q. And even though you were in the car listening to what

people may or may not have been saying, you didn't find out

really the purpose of the trip, did you, sir?

A. No.

Q. Then you just came back to Rapid and went about your

business?

A. Yes, I was just driving.

MR. RENSCH: That's all.

THE COURT: Anything further.

REDIRECT EXAMINATION BY MR. MANDEL:

Q. I neglected to ask you, sir, on direct examination, what

happened to your wife Evelyn?

A. She got killed in a car accident in 1981.

MR. MANDEL: Thank you, nothing further, Your Honor.

MR. RENSCH: Nothing further.

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PAGE 207

THE COURT: Thank you, you may step down.

MR. MANDEL: United States would call Joan Decker.

JOAN DECKER,

called as a witness, being first duly sworn, testified and

said as follows:

DIRECT EXAMINATION BY MR. MANDEL:

Q. State your name, please?

A. My name is Joan Decker.

Q. Could you spell that for the Court Reporter, please?

A. J-O-A-N, D-E-C-K-E-R.

Q. What is your occupation?

A. I am the enrollment director for the Oglala Sioux Tribe.

Q. How long have you had that position?

A. I have been there for 29 years.

Q. As enrollment director what do you do there at the

tribe?

A. I keep track of the vital statistics for the tribe, and

issue enrollment numbers to the people that are eligible for

enrollment.

Q. To be eligible for enrollment what are the requirements?

A. At least one parent must be an enrolled member and a

resident of the Pine Ridge Reservation.

Q. Did you conduct a search of the enrollment records for

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PAGE 208

Fritz Arlo Looking Cloud?

A. Yes, I did.

Q. What were you able to find out?

A. That he is an enrolled member.

Q. Do you have a copy of the enrollment record before you?

A. Yes, I do.

(Exhibit 42 marked For identification.)

BY MR. MANDEL:

Q. I am showing you what's been marked Exhibit 42, is that

the enrollment record that you obtained?

A. Yes, it is.

MR. MANDEL: I offer Exhibit 42 at this time, Your

Honor.

MR. RENSCH: No objection.

THE COURT: Exhibit 42 is received.

BY MR. MANDEL:

Q. What does that state regarding Fritz Arlo Looking Cloud?

A. It shows that Fritz Arlo Looking Cloud is listed on the

Pine Ridge Indian Reservation since this ledger established

1908, revised 1956, an official record of this agency as being

four fourths degree Oglala Sioux Indian blood with enroll

number you 22849 and was born March 25, 1951.

MR. MANDEL: I have no further questions, Your

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PAGE 209

Honor.

MR. RENSCH: No questions.

THE COURT: Thank you, Ma'am, you may step down.

MR. MANDEL: The United States would call Angie

Janis, Your Honor.

ANGIE JANIS,

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. Angie Janis.

Q. Can you spell your last name?

A. J-A-N-I-S.

Q. Where do you live?

A. Pine Ridge, South Dakota.

Q. Are you employed down there?

A. Yes, I am.

Q. What do you do for a living?

A. I am a self-determination assistant.

Q. Who are you employed by?

A. Bureau of Indian Affairs.

Q. How long have you been a BIA employee?

A. About ten years.

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Q. Has that all been in the same job?

A. No.

Q. What other jobs have you had there?

A. I worked for the Pine Ridge school. That was under the

bureau too.

Q. Are you originally from Pine Ridge?

A. No.

Q. Where are you from originally?

A. Minnesota.

Q. Back in the 1970's, particularly at the end of 1975,

where were you living?

A. In Denver.

Q. What were you doing down there in Denver at that time?

A. I was working as a secretary.

Q. Who were you employed by?

A. Native American Rights Fund.

Q. Was that located up in Boulder, Colorado?

A. Yes.

Q. Were you also at that time familiar with the American

Indian Movement in Denver?

A. Yes.

Q. And what was your acquaintance with that?

A. I just was involved with the movement.

Q. Would you consider yourself a member of AIM?

A. I was.

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Q. Were you also involved in a relationship at that time

with an individual named John Graham or John Boy Patton?

A. Yes.

Q. When did you first become involved with him?

A. I think the summer of '75.

Q. What name did you know him by?

A. John Boy.

Q. Was the last name Patton?

A. Yes.

Q. Did the two of you live together during that period of

time?

A. Yes.

Q. Did you have your own residence?

A. Yes.

Q. Was that in Denver?

A. Yes.

Q. Did you also know an individual by the name of Troy Lynn

Yellow Wood?

A. Yes,

Q. How did you know her?

A. Through her aunt.

Q. And her aunt would be?

A. Theda Clark.

Q. Troy Lynn Irving also known as Troy Lynn Yellow Wood?

A. Yes.

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Q. How did you know Theda Clark?

A. She was involved in the movement.

Q. And you just met her through that?

A. Yes.

Q. When did you first meet her?

A. I think in '74, but I am not sure.

Q. Did you spend any time over at Troy Lynn Irving's

residence?

A. Yes.

Q. And what would you go there for?

A. Just to visit.

Q. Do you remember where she lived at that time?

A. Yes, on Pecos.

Q. What type of structure was it that she lived in, a house

or an apartment?

A. Kind of a triplex or something like that.

Q. Did a lot of people from AIM tend to meet over there at

that time?

A. I am not sure.

Q. Well, normally if you would be going over there why did

you go there?

A. Just to visit.

Q. Do you remember a particular time when you came to Troy

Lynn's residence when somebody was taken from there?

A. Yes.

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Q. Can you tell us how that came about?

A. I got a call, I was working at the Native American

Rights Fund, and I got a call from Thelma Rios.

MR. RENSCH: Objection, Your Honor, hearsay.

THE COURT: Either move the microphone up this way a

little ways away from you, or sit back a little bit, you get a

little bit of feedback in to it. Just a moment. Thank you.

Not thus far, overruled.

BY MR. MANDEL:

Q. You were saying you got a call there at the Native

American Rights Fund?

A. I got a call from Thelma, and I can't remember the --

Q. Thelma who?

A. Thelma Rios.

Q. What did she say to you at that time?

MR. RENSCH: Objection, hearsay.

THE COURT: Sustained.

MR. MANDEL: Your Honor, this isn't being offered

for the truth of what is asserted, but simply to show what

prompted the actions she took.

THE COURT: On that limited basis I will allow it.

With a limiting instruction again. This isn't to say that

whatever might have been said was true, so it is not admitted

for the truth of the matter stated. It apparently is being

offered for some action that subsequently was taken to show

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the basis for that action, but not necessarily that what ever

is being stated now is true. With that limiting instruction

you can answer.

A. I can't remember the exact words, but something to do

with Anna Mae was an informant and needs to come back to

Rapid, something like that.

BY MR. MANDEL:

Q. What were you supposed to do?

A. Just tell someone in Denver.

Q. Who did you tell?

A. I am not sure who I told. Theda or John Boy, Theda

Clark or John Boy, I don't remember who exactly I told.

Q. What happened after you did that? Did you at some point

go to Troy Lynn's house?

A. Yes.

Q. Why did you go there?

A. To tell someone.

Q. That is when you informed them that Anna Mae needed to

be taken to South Dakota?

A. Yes.

Q. What happened then once you were there at the house?

A. I think they called some people there to Troy Lynn's

house, and they all met upstairs in the kitchen.

Q. Let me ask you, did you know Anna Mae Aquash prior to

that?

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A. Yes.

Q. How did you know her?

A. Through various meetings, conference, places where AIM

was, she was there.

Q. When did you first know her?

A. I am not sure.

Q. Were you present at Wounded Knee?

A. Yes.

Q. Did you meet her there?

A. No, I never -- no.

Q. Did you know she had been staying at Troy Lynn's?

A. Yes.

Q. Did you have any idea how long she had been there?

A. No. No.

Q. Did you have any discussions with her while she was

there?

A. With Anna Mae?

Q. Yes.

A. We visited.

Q. Did she say why she was there?

A. I don't remember.

Q. Were you aware that she had jumped bond on the trial

that she had in South Dakota?

A. I am not sure.

Q. And I don't know if I asked you, but do you recall about

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what date this all happened?

A. No. I think it was November, but I don't know the date.

Q. Of 1975?

A. Yes.

Q. Is it possible it was even in to December?

A. No, I don't think so.

Q. After you conveyed this message, went to the house

there, do you recall what happened next?

A. They had a meeting, and I think, I know she was

downstairs, had a meeting in the kitchen, and they called some

people in from the Mexican movement, but I don't remember who

they were.

Q. The movement called the Crusade for Justice?

A. Yes.

Q. Do you remember an Ernesto Vijil?

MR. RENSCH: Objection, leading. Your Honor.

THE COURT: Sustained.

BY MR. MANDEL:

Q. Do you recall how many people were at the meeting?

A. No.

Q. Do you remember any of the people who attended the

meeting?

A. Yes. I think I do.

Q. Who was there?

A. Troy Lynn, Arlo, John Boy, George Palfey, Ernesto, and I

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think there was someone else, but I don't know who the other

person was.

Q. I am sorry, didn't get the last name?

A. The Ernesto that you mentioned.

Q. When you say Arlo, are you referring to Arlo Looking

Cloud?

A. Yes.

Q. How long had you known Arlo at that time?

A. Maybe I just met him about a month or less maybe, I am

not real sure about that.

Q. Do you recognize him seated in the courtroom today?

A. Yes.

Q. Can you tell me where he is seated and what he is

wearing?

A. Gray shirt and glasses.

MR. MANDEL: I ask the record to indicate the

defendant has been identified. Your Honor.

THE COURT: It may.

BY MR. MANDEL:

Q. ' Over the years between 1975 and today have you seen Arlo

on other occasions?

A. Yes, in Denver.

Q. Has it been quite a while since you have seen him?

A. Yes.

Q. Do you remember what was being discussed at that

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meeting?

A. That she was an informant, and I don't know, someone

mentioned what they do, the Crusade mentioned what they do to

informants.

Q. And what was it they said they do to informants?

MR. RENSCH: Objection, hearsay.

THE COURT: Just a moment. We are going to have an

evidentiary recess at this point. We will have a recess for

about ten minutes, don't talk about the case nor the

witnesses. Please stand for the jury.

(Jury Leaves ).

THE COURT: Please be seated. I want to hear

argument on this point.

MR. MANDEL: Your Honor, very simply this is a

meeting at which Arlo Looking Cloud was present, this goes

directly to his intent and knowledge. Let me ask the question

and get out what was said.

THE COURT: Well, go ahead.

MR. MANDEL: For the purpose of this discussion

only, Your Honor.

BY MR. MANDEL:

Q. What did they say they did with informants?

A. He made some kind of motion. They go like this to them

he said.

Q. What did you understand that to mean?

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A. Probably that they do away with them.

Q. That they kill them?

A. Yes.

Q. Cut their throats?

A. Yeah.

MR. MANDEL: Okay, thank you. Your Honor, this is a

meeting which she was present at, Arlo Looking Cloud was

present at, and it is certainly not offered for the truth of

what was asserted. I don't care what the Crusade for Justice

did with informants, you know, if there is any accuracy to

that or not, but what it goes to is his knowledge at the time

that the victim was taken from that house in Denver, Colorado,

and it is not hearsay evidence, it is not offered for their

purpose, and it bears directly on the issue that is in

contention in this case.

THE COURT: I will hear from the defense.

MR. RENSCH: If you look at the way that this

question was phrased, at the point I was making the objection

and you asked for the evidentiary hearing, she was asked what

was said by the person from the Mexican movement and what she

took that to mean. Well, the statement is this is what we do

to them in our movement. What she took that to mean was they

kill people in the movement. It is clearly for the truth of

the matter asserted. The person who said this is not

available for any cross examination what so ever. It is more

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prejudicial than it is probative, and it is simply the truth

of the matter asserted any way you slice it. And it will be

argued as such at the end, because they will say, well, he

should have known if this person from the Mexican movement is

saying we kill informants. So I think it is clear hearsay, it

would be a violation of the confrontation clause to allow it,

and we request that it be excluded.

THE COURT: Anything further, you are standing.

MR. MANDEL: Yes. Candidly, Your Honor, I think it

is a complete misapprehension of the hearsay rule on the part

of counsel. It is not being offered for the truth of what is

being asserted, it makes no difference whether or not it was

true that they ever did anything to an informant in the

movement, or if it was just bravado, or what it was. The

point is that statement was made in front of the defendant,

that that was knowledge that he had, and that is the

significance of it. It is not a question of it being

admissible hearsay, it is a question of it isn't hearsay at

all that is being offered in this case.

THE COURT: Well, who is he that drew his finger

across the throat?

THE WITNESS: I think it was Ernesto. It was either

him or the other guy, I don't remember for sure.

THE COURT: Was Mr. Looking Cloud there when that

happened.

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Index

PAGES 221 to 235

PAGE 221

THE WITNESS: I don't know if he was there. I know

he was in the house, but I don't know if he was specifically

in the room.

THE COURT: Well, I mean that's the rest of what you

didn't establish with your question. They, I mean Mr. Looking

Cloud was at the meeting, but what about that?

MR. MANDEL: Your Honor, that is something that is

going to go to the weight of the evidence. That doesn't go to

the admissibility of this piece of evidence. Counsel is

entitled to argue that he was present in the house, we can

discuss the size of the house, it was a very small house, this

statement was made, shortly thereafter the victim is tied up

and taken out of the house. You know, the jury can process

that evidence how they want, but that has nothing to do with

the issue of the admissibility of that, that only goes to the

weight, Your Honor.

THE COURT: I thought she was down in the basement,

I didn't think she was taken out of the house.

MR. MANDEL: She was taken out of the house

subsequent to this.

THE COURT: I wanted to make sure I wasn't

remembering it wrong. You said she was taken out of the

house, I thought when this discussion went on the evidence in

front of the jury was the discussion was in the kitchen

upstairs and Anna Mae Aquash was down in the basement when

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this was going on.

MR. MANDEL: Right.

THE COURT: Alright.

MR. RENSCH; Can I say something, Your Honor?

THE COURT: Certainly.

MR. RENSCH: If there is doubt about whether or not

he was there when that statement was said, and if this all

goes to just weight and not admissibility, that statement that

is attributed to a person who doesn't come in here to Court is

going to be thrown all over in front of this jury, and while I

believe and I hope that juries can look through that and

listen to the evidence and do what they are supposed to do,

this is so capable of being turned in to something very, very

prejudicial that hurts my client's fair trial rights. If they

wanted that statement that bad, there would be other ways they

can bring the declarant in, there are things that can be done.

And if we are not sure that Arlo was in the room when that

statement was being said, it couldn't serve a greater

injustice than to have that be used against him in this case,

and I would ask it be excluded.

THE COURT: Sustained as to that as well as

foundation with regard to the movement by one of the Mexican

movement members across his throat indicating slicing

somebody's throat. Even though it is an act and not a verbal

or written statement, none-the-less it can fall under the

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hearsay rule, and as the problem with that, and a problem with

foundation in that it has not been established that at the

time of the drawing of the finger across the throat that

Mr. Looking Cloud was in the kitchen. So bring the jury back

in, you can continue then with your examination. Please stand

for the jury.

(Jury Returns).

THE COURT: You may continue.

MR. MANDEL: Thank you, Your Honor.

BY MR. MANDEL:

Q. Now this meeting that was taking place, where in the

house did you say it was occurring?

A. In the kitchen.

Q. Was this house on more than one level?

A. Yes, has a basement, had a basement.

Q. Just a basement and a main floor?

A. Yes.

Q. The kitchen I take it was on the main floor?

A. Yes.

Q. How big a house was it?

A. I think it was a three bedroom.

Q. Was the basement finished?

A. No.

Q. During this meeting that was taking place, do you know

where Anna Mae Aquash was?

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A. In the basement.

Q. Was there anybody down there with her?

A. I don't know. I think -- I don't know.

Q. Was some decision made at this meeting?

A. I think to take her back to Rapid City.

Q. Do you know who expressed that that was going to be

done?

A. No, I don't remember.

Q. Did somebody then do something toward taking her back to

Rapid City?

A. Yes.

Q. Can you tell us what happened?

A. They brought her upstairs and took her out the door.

Q. First of all, who brought her upstairs?

A. I don't remember who brought her up.

Q. You don't recall who brought her up?

A. No.

MR. MANDEL: Your Honor, I ask that I be allowed to

approach the witness and show her her grand jury testimony to

see if that would refresh her recollection.

THE COURT: You may.

(Shows Grand Jury Testimony to Witness).

BY MR. MANDEL:

Q. Ms. Janis, did you testify at the grand jury almost ten

years ago in this matter?

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A. Yes, I did.

Q. Did you just have an opportunity to look at some of your

grand jury testimony from that date?

A. Yes.

Q. Does looking at that refresh your recollection as to

what took place on that date?

A. Yes. Theda, John Boy and Arlo, they took her out of the

house, but I didn't see them when they left. I didn't see

them actually put her in the car and leave.

Q. Who brought her out of the basement?

A. I think Theda and John Boy and Arlo.

Q. And what was her condition when she was taken from the

basement?

A. She was tied up.

Q. How was she tied up?

A. I think her wrists were tied, and they had her on like a

board or something, her hands were tied to the board.

Q. Do you recall --

A. They carried her out.

Q. They carried her out?

A. Yes.

Q. How long had Arlo been there at the house before this

happened?

A. You mean as far as hours or days?

Q. Right, hours. On that day when you came there, was he

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there the whole time?

A. I think he was. I am not, I don't know for sure.

Q. How long were you there before this happened that she

was taken out?

A. A couple hours maybe.

Q. What did you think was happening to her at that time?

A. I just don't know, I just thought they were taking her

back to Rapid to question her. You know, nothing bad would

happen to her I thought. You know, I didn't think anything

bad was going to happen.

Q. In spite of the fact that she was carried out of there

tied up?

A. Yes, because there were other informants before her and

nothing ever happened to them. John Durham.

Q. Now did you see whose vehicle they left in?

A. No, I didn't see.

Q. Do you know what kind of vehicle Theda Clark had at that

time?

A. She had a little red Pinto station wagon.

Q. Did you go outside of the house after Anna Mae was

removed?

A. No.

Q. Did you stay in the house for some time after that?

A. Yes.

Q. How long?

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A. Probably about an hour.

Q. Did anybody attempt to call law enforcement after this

happened?

A. No.

Q. Specifically did Troy Lynn Irving ever try to call the

police?

A. No.

Q. Did you ever interfere with somebody trying to contact

law enforcement?

A. No.

Q. After the removal from the house, how long did you stay

there?

A. About an hour, I think. I don't remember how long I

stayed there for sure.

Q. Was there any discussion at that time about what had

taken place?

A. I know Troy Lynn called her mom, and I think her mom

came.

Q. Was she upset?

A. Yes.

Q. What about you?

A. Yes.

Q. Were you concerned?

A. Yes.

Q. Now you were living with John Boy at that time. How

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long was he gone for?

A. I don't remember how long he was gone for.

Q. Well, was it, can you tell us if it was more than a day?

A. Yes, it was more than a day.

Q. Would it have been a few days?

A. I think so.

Q. When he came back, did he have any discussions with you

about this?

A. No.

Q. Did you at some point find out that Anna Mae Aquash had

been murdered?

A. Yes.

Q. When was that?

A. I don't remember when I found out.

Q. Would it have been close in time to this, within a few

months?

A. Well, I don't know. I don't remember.

Q. Well, did you think her death was connected to when she

was taken away from the house there in Denver?

MR. RENSCH: Objection, relevance, Your Honor.

THE COURT: Overruled.

A. Can you repeat that?

BY MR. MANDEL:

Q. I am asking if you thought her murder was connected to

that day you saw her taken away from the house there in

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Denver?

A. Yes.

Q. Did you ever discuss that with anyone?

A. No.

Q. Nobody at all?

A. I think I might have talked to Troy Lynn.

Q. Did you ever think of going to law enforcement about it?

A. Yes, I did.

Q. Did you do so?

A. No.

Q. Why not?

A. Scared.

Q. Are you scared as you sit here today talking about it?

A. Yeah.

MR. MANDEL: No further questions, Your Honor.

THE COURT: Cross exam.

CROSS EXAMINATION BY MR. RENSCH:

Q. Afternoon, Ma'am.

A. Hello.

Q. Just so everybody is clear, you don't know for sure if

Arlo was present during this meeting, do you?

A. No.

Q. It could have been that he was down in the basement,

isn't that true?

A. Yes.

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Q. And Ms. Pictou-Aquash was in the basement, wasn't she?

A. Yes.

Q. When you say she was carried out of the house, are you

saying she was carried out on a board?

A. I think she was carried out like a board like this and

her hands were tied, I think.

Q. Are you absolutely sure about that?

A. I know she was carried out.

Q. Were any of her feet touching the ground as she went

out?

A. I am not sure.

Q. Could she have walked out?

A. No, I don't think so.

Q. You don't know who tied her up, do you, Ma'am?

A. No.

Q. And you never saw how she was put in the vehicle, did

you, Ma'am?

A. No.

Q. Now you have testified before at a grand jury about

this, haven't you?

A. Yes.

Q. You never said anything to the other grand jury about

her being tied up to a board, did you?

A. I don't remember.

Q. Well, as you looked at the grand jury testimony, did you

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see reference to a board?

A. No.

Q. You have spoken with Mr. Robert Ecoffey several times

about this, haven't you?

A. Yes.

Q. You know Robert Ecoffey, don't you?

A. Yes.

Q. He is a relative, isn't he?

A. No.

Q. Is he a relative of your present husband's?

A. Yes.

Q. How so?

A. I am not sure how they are related.

Q. How long have you been married to your present husband?

A. Fifteen years.

Q. When you spoke with Robert Ecoffey in 1993, you didn't

mention Arlo Looking Cloud, did you?

A. I don't remember.

Q. If Robert Ecoffey had a report indicating that he spoke

to you and it didn't make reference to Arlo Looking Cloud, do

you remember separately talking to him about Arlo Looking

Cloud in 1993?

A. No, I don't remember.

Q. And you also spoke with Mr. Ecoffey in June of 1994, die

you not?

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A. I think so.

Q. You have spoken to him a number of times, haven't you?

A. Yes.

Q. You didn't tell him anything about Ms. Pictou-Aquash

being tied to a board, did you?

A. I don' t know.

Q. And when you spoke to him in July of 1994, you didn't

say anything to him about Ms. Pictou-Aquash being tied to a

board, did you?

A. I don't know.

Q. What color was the board?

A. I don't know.

Q. What color was the rope?

A. I don't know.

Q. Did you see the rope?

A. I -- no, I don't think so.

Q. Did you see her hands?

A. I think I did.

Q. But you don't remember for sure, do you?

A. No, been a long time.

Q. A lot of years have passed since that day?

A. Yes.

Q. Was that day a crossroads in your life?

A. Yes.

Q. Your life changed after that day?

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A. Um-hum.

Q. Were you an enemy of Ms. Pictou-Aquash in December of

1975?

A. No.

Q. You consider her a friend?

A. I did.

Q. You liked her, and when she left that day you didn't

think that anything bad was going to happen to her other than

just some questioning, did you?

A. No, I didn't.

Q. If you would have thought that something terrible was

going to happen to her, would you have done something about it

do you think?

A. Yes.

Q. Like call the police and tried to help her?

A. Yes.

Q. And you didn't call the police and try to help her, did

you?

A. No.

Q. Have you felt bad because you didn't do something to try

to help?

A. Yes.

Q. If in 1975 you are an American Indian in the American

Indian Movement, did it serve a purpose to snoop around, ask

questions?

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A. I don't know.

Q. Were there times when you saw other things that you just

thought, hey, I better just not say anything, and let this

thing run its course and maybe it will be alright?

A. No.

Q. Did you feel like you just really didn't have any

choice, you just had to be quiet about it back then?

A. Yes.

MR. RENSCH: Nothing further, thank you.

REDIRECT EXAMINATION BY MR. MANDEL:

Q. Was it clear to you that Ms. Aquash was being taken

against her will?

A. Yes.

Q. And three people you have mentioned, Arlo, John Boy and

Theda, were going that?

A. Yes.

Q. Did you ever in the time that you belonged to AIM tie

somebody up and abduct them?

A. No.

Q. Would you have done something like that?

A. No.