The United States of America vs. Fritz Arlo Looking Cloud Court Trial Transcripts February 2004 Rapid City, South Dakota DISCLAIMER: The original document was automatically scanned and then automatically formatted. It has been carefully proofread. Any errors or misspellings occurring in content from the original document are unintentional and mechanically produced, and no liability will be assumed. Other apparent errors are in the actual original document; for instance, on page 3 it is noted that "Kamook finished high school in 1927 at seventeen years old," and, on page 384, Nilak Butler is referred to as "Miwak" Butler. These entries are either courtroom misstatements, court stenographer errors, or other court-related clerical errors. INDEX OF COURT TRIAL TRANSCRIPTS: Pages 1-15 Pages 16-30 Testimony: Roger Amiotte pg 22 Pages 31-45 Pages 46-60 Testimony: Don Dealing, FBI, pg 54 Pages 61-75 Testimony: John Munis, FBI, pg 62; Dr. Garry Peterson, pathologist, pg 67 Pages 76-90 Testimony: William Wood, FBI, pg 80 Pages 91-105 Testimony: Evan Hodge, retired FBI, pg 95 Pages 106-115 Testimony: Darlene Nichols (Kamook), pg 112 Pages 116-130 Pages 131-145 Pages 146-160 Pages 161-175 Pages 176-190 Testimony: Mathalene White Bear, pg 180; Bob Riter, atty, pg 190 Pages 191-205 Testimony: Raymond Handboy, pg 198 Pages 206-220 Testimony: Joann Decker, pg 207; Angie Janis, pg 209 Pages 221-235 Testimony: Troy Lynn Yellow Wood, pg 235 Pages 236-250 Pages 251-265 Pages 266-280 Pages 281-295 Testimony: Denise Maloney Pictou, pg 292 Pages 296-310 Testimony: Candy Hamiltion, pg 299 Pages 311-325 Pages 326-340 Testimony: Jeanette Eagle Hawk, pg 326; Cleo Gates, pg 333 Pages 341-355 Testimony: Richard Two Elk, pg 343 Pages 356-370 Pages 371-385 Testimony: John Trudell, pg 380 Pages 386-400 Pages 401-415 Testimony: Robert Ecoffey, Deputy Director, BIA, pg 408 Pages 416-430 Pages 431-445 Pages 446-460 2nd Testimony: Robert Ecoffey, Deputy Director, BIA, pg 456 Pages 461-476 Testimony: David Price, FBI, pg 465 PAGES 1 to 15 PAGE 1 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION ******************* * UNITED STATES OF AMERICA, Plaintiff, * * -vs- FRITZ ARLO LOOKING CLOUD, Defendant. * * CR. 03-50020 * JURY TRIAL * VOLUME I * ******************* BEFORE: The Honorable Lawrence L. Piersol Chief United States District Judge For the District of South Dakota Sioux Falls, South Dakota APPEARANCES: Mr. James McMahon Mr. Robert Mandel United States Attorney Sioux Falls, South Dakota Attorneys for the Plaintiff. Mr. Timothy Rensch Attorney at Law Rapid City, South Dakota Attorney for the Defendant. PROCEEDINGS: The above-entitled matter came on for hearing on the 3rd day of February, 2004 commencing at the hour of 9:00 a.m. in the courtroom of the Federal Building, Rapid City, South Dakota. Proceedings recorded by mechanical stenography, transcript produced by computer. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 2 (A jury was duly selected.) (Court Reads Preliminary Instructions.) THE COURT: That completes my preliminary instructions, and counsel for the government may give opening statements. MR. McMAHON: Ladies and gentlemen. On a December morning in 1975 a little red Pinto wagon pulled up to the edge of a road about three miles north of the junction between Highway 73 and 44. The driver of that little red car was Theda Clark, there were three passengers in the car; the defendant, Arlo Looking Cloud, fellow by the name of John Graham, and Anna Mae Aquash. After Anna Mae was taken out of the car, she was walked by the defendant and by Mr. Graham from the edge of the road out to the edge of that cliff. All the way out there she was begging them not to kill her. When they got to the edge of the cliff and she realized that her pleas were to no avail, she asked to have time to pray. While she was praying on the edge of that cliff she was shot in the back of the head. Her body was either thrown or fell over the cliff, came to rest right there where that white mark is. Stayed there for about two and a half months until a rancher riding fence found it. After Anna Mae was killed, the defendant, Mr. Graham, walked back to the car and three people drove back to Denver. So who was Anna Mae Aquash, why was she taken to that cliff to be killed, and how did she get there? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 3 This is Anna Mae Aquash. Anna Mae was a member of the Mik'maq Tribe from Canada. She was a mother of two young daughters. She came to the United States to support the American Indian Movement. She came down at a time that AIM was occupying Wounded Knee. She joined the occupation and she stayed. She spent the next two years attending AIM events, making friends within the AIM organization. When she wasn't attending events somewhere else around the country, she was often times on the Pine Ridge Indian reservation. But at the same time she was making friends. As we approached the year 1975 there started to be rumors all through the AIM movement that Anna Mae Aquash was a government informant. Portions of the AIM movement within South Dakota had turned somewhat violent. There had been riots at the Custer courthouse, Minnehaha courthouse in Sioux Falls, the occupation of Wounded Knee when there was gun fire exchanged between the occupants and federal authorities, and there were rumors of many people possibly being informants. But particularly Anna Mae. We are going to pick up our story in June of 1975. There was an AIM national convention held in Farmington, New Mexico. Hundreds of people gathered from around the country, some of the leaders of the AIM movement were there, Anna Mae was there, Dennis Banks, one of the leaders, was there. There were many people there. Along with Dennis Banks was a young lady by the name of Kamook Nichols. Kamook finished high school in 1927 at seventeen JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 4 years old and following that she entered in to a relationship with Mr. Banks, and she traveled with him and the two of them eventually had four children together. They were together in Farmington. During this national convention there was a general topic of conversation that Anna Mae was a government informant. She was confronted down there with the possibility that she was an informant, she was actually threatened down there. She denied it. And she was not. After the convention ended, the participants went back to their various homes. There were a number of them that came back to South Dakota to the Pine Ridge Indian reservation, and there was encampment at a place called Jumping Bull on the Pine Ridge Indian reservation. On June 26, 1975, two FBI agents by the name of Coler and Williams were following someone they believed to be a fugitive, and they found themselves at that encampment. They came under fire and they were shot and killed. This escalated the tension immensely between law enforcement and members of the AIM movement. In the next month, July of 1975 there was a trial in Custer, South Dakota. Dennis Banks was on trial for his participation in the courthouse riots down there. Mr. Banks was convicted during that trial, he was let out on bond pending his sentencing. He went back to the Pine Ridge Reservation and was waiting around there. He was supposed to be sentenced approximately four to six weeks later, something like that. When it was time for him to go JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 5 back for his sentencing he made a decision that he was not going to go back to be sentenced, he decided to run. Kamook went with him. On September 5, 1975, law enforcement conducted a raid at a place called Crow Dog's Paradise which is on the Rosebud reservation. There were a number of people arrested during that raid and charged with weapons and explosives violations. Anna Mae Aquash was one of those people. The people arrested were taken to Federal Court in Pierre, South Dakota for an appearance. Anna Mae appeared, she had a court appointed lawyer by the name of Bob Riter from Pierre. The Judge let Anna Mae out on bond, and she was supposed to come back on November 10th. After Anna Mae was out on bond she traveled to California. She stayed with a friend of her's by the name of Mathalene White Bear. She and Mathalene had become acquainted through being together at different AIM organizational events. Mathalene was a young woman at the time, twenty years old, she was still living at home with her parents, and Anna Mae stayed with them for a week or two. During that time Anna Mae shared with Mathalene that she was - - MR. RENSCH: At this point I object, getting in to argument that is inadmissible evidence. THE COURT: We will see if it is admissible. It is the attorney's expectation that the evidence will be admitted, I can't rule on it yet because the evidence hasn't been JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 6 presented. So I am not going to sustain the objection, because I don't know at this point, but it is supposed to be. If it isn't, I'm sure we will hear about it if it isn't admitted, proceed. MR. McMAHON: Thank you. Your Honor. Anna Mae confided in Mathalene that she had been confronted about being an informant. She was very fearful for her life. She was afraid of the FBI, and she was afraid of different factions within AIM. She told Mathalene that she was concerned about she may be killed. She received a telephone call while she was there, she told Mathalene she was leaving. Mathalene tried to talk her out of it, but Anna Mae said she was going to go. She met up with a man by the name of David Hill, and they drove a motor home from Los Angeles back to Chadron, Nebraska. They parked the motor home there and made their way up to the Pine Ridge Indian reservation. We are now approaching Columbus Day, 1975, October 12. There was a get-together on the Pine Ridge. Mr. Banks was back for the meeting, Leonard Peltier was there, David Hill was there, Anna Mae was at this meeting, and Kamook Nichols was at the meeting. And there may have been others. A plan was hatched whereby they were going to make some home made bombs and plant them at utilities in Pine Ridge. Leonard Peltier and David Hill made Anna Mae participate in that so her fingerprints would be on the bombs. So the next day when they were planted JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 7 they made her participate in that. They then made their way back to Chadron and picked up the motor home, Mr. Banks, Leonard Peltier, Anna Mae, and Kamook Nichols, Kamook's sister, and one or two others were in the motor home. They were taking Anna Mae with them because they wanted to keep an eye on her. They traveled from Chadron, Nebraska to the state of Washington where they camped for two or three weeks. During that time there were more accusations, more conversation about Anna Mae being an informant. She was not allowed to go anywhere alone. When they left that spot they started on the road, they were traveling down a highway in Oregon, a Highway Patrolman saw the motor home, he knew who was in the motor home, and he stopped it. He ordered the occupants of the motor home out. All of the occupants got out of the motor home except Mr. Banks. Mr. Banks decided to take off in the motor home and an exchange of gun fire followed between the gun fire and the motor home. Mr. Banks got away during the gun fire, Mr. Peltier got away. Anna Mae was re-arrested, Kamook Nichols was arrested, there were a couple other people there that were following in a car that were arrested. Anna Mae and Kamook Nichols were put in a jail cell together. Now they hadn't been spending much time together. They were friends from 1973 when Anna Mae showed up until June of '75 in Farmington, New Mexico, they became friends and spent quite a bit of time together. While they were in JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 8 Farmington, New Mexico, Kamook learned that Anna Mae Aquash had also fallen in love and entered in to a relationship with Mr. Banks. So during the summer months and through that fall there was not much contact between the two of them. But now when they were alone together in the jail cell they began visiting again. And Anna Mae also shared with Kamook that she was scared. They were in jail up there for about two weeks, and then they were brought back to this part of the country. Kamook was taken to Kansas where she was wanted because she had missed a court date while they were traveling in the motor home. Anna Mae was taken to Pierre, South Dakota, because she had missed her November ten court date. She appeared in court on November 24. This was the day before her trial on the weapons and explosive charges was set to begin. She met with her court appointed attorney. When she appeared in court, even though she had just missed a court appearance, the Judge let her out on bond again. During the night she was picked up by two people within the American Indian Movement, Evelyn Bordeau and her husband Ray Handboy. They transported her to Denver. She was taken by Theda Clark to the home of Troy Lynn Yellow Wood. Ms. Yellow Wood had an apartment there and it was used for members of AIM as more or less of a safe house when they were on the run. She was dropped off there with Theda Clark and Michelle Wood to keep her there safe. She was not initially being held against her will. She spent JERRY J, MAY. RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 9 Thanksgiving there. She spent in to December there, but she was very scared while she was there. The first part of December a call came from South Dakota down to Denver, by Angie Janis. Said that Anna Mae was an informant, she was wanted back in South Dakota. A meeting was convened at the home of Troy Lynn Yellow Wood. Theda Clark was there, and of course Troy Lynn Yellow Wood was there. Angie Janis was there, there were some members of the Crusade for Justice there, which was I believe it was a Chicano organization out of Denver that had close ties with the AIM people. And there were other people there who have not yet been identified. The defendant Arlo Looking Cloud was there, and John Graham was there, and their job during this meeting was they kept Anna Mae Aquash in a separate room under guard. When the meeting ended, Theda Clark came to the room and said let's go. They got Anna Mae up and they tied her wrists together. They started escorting her out of the house, they ran in to Troy Lynn Yellow Wood. Anna Mae was crying, she said I don't want to go. If I go back to South Dakota you will never see me alive again. Troy Lynn Yellow Wood had a conversation with Theda Clark, Theda Clark said she is going one way or the other. The defendant, Mr. Looking Cloud, and John Graham marched her out of the apartment, put her in the back, the hatch end of that little red Pinto car that was owned by Theda Clark, tied up, then the two of them got in the car along with JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 10 Theda Clark. They drove all night to Rapid City. Early in the morning they arrived and they went to an empty apartment that was owned by Thelma Rios, another AIM member in Rapid. The defendant, Mr. Looking Cloud, and John Graham kept Anna Mae Aquash under guard all day. Theda Clark was in and out of the house. Some point late in the afternoon Anna Mae was taken to a house that had been set up for what was called the Wounded Knee Legal Defense-Offense Committee. They used it to coordinate the defense of people that had been charged with criminal cases, or AIM members. There was another meeting at that time involving Anna Mae, she was seen to be visibly upset. When they left that house, the defendant, Mr. Graham, Theda Clark again took Anna Mae, they put her back in the little red Pinto, again bound up, tied up. The defendant was now driving and they headed south toward the Pine Ridge Indian reservation. They first went to a small town, Allen, South Dakota, on the Pine Ridge reservation. About three or four hundred people live there, it was late at night by now, about eleven o'clock at night. They showed up at the house of Cleo and Dick Marshal. The Marshals were in bed already, they woke them up, went into the house. They left Anna Mae at the kitchen table with Cleo. The defendant, John Graham, Theda Clark and Dick Marshal walked into the next room and shut the door. A few minutes later they came out. Dick Marshal said to his wife they want us to keep her here for a while. Cleo JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 11 said I don't like the looks of this, no way. So the defendant, Mr. Graham, Theda Clark take Anna Mae, put her back in the car again and now they are on their way to Rosebud. They stop at a house in Rosebud in the wee hours of the morning. This time just Theda Clark and John Graham go in the house, and the defendant stays in the car and guards Anna Mae. While they are in that car, she begs him to let her go. She tells him she knows she is going to be killed, and she begs to be set free. The defendant refuses. Theda Clark and John Graham come out of the house, they get into the car, they start driving north. North toward Wanblee. Soon they cross the intersection of Highway 44, they are going north on Highway 73. Three miles approximately north of that intersection is where they pulled over. Now as I said to you, Anna Mae's body laid at the bottom of that cliff until late in February. Roger Amiotte, a rancher was out riding fence, found the body and reported it immediately. The body had been there long enough that it wasn't in very good shape. An autopsy was done by a doctor by the name of Dr. Brown out of Scotts Bluff, Nebraska. In a nutshell, that autopsy was botched. Dr. Brown found that the cause of death was exposure. Didn't even find the bullet hole in her head. Commented about the weight of the kidneys, but it turns out later that the kidneys hadn't ever been removed from the body to be weighed. Because of the condition of the body, they JERRY J. MAY, RPR, CM 400 South Phillips Avenue, tt305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 12 couldn't take fingerprints there, so they severed the hands and sent them back to the lab in Washington, D.C., the FBI lab. Approximately two weeks later the report came back Anna Mae Aquash. At that time the FBI and the family of Anna Mae both started down the same road to obtain a Court order to have the body exhumed and another autopsy done. That was done. There was discussions about having two pathologists at the autopsy, what ended up happening is the pathologist that was obtained by the Aquash family is the one that did the second autopsy because the FBI said we are fine with that. Dr. Garry Peterson from Minneapolis came and did that second autopsy. He didn't realize even when he arrived that he was going to do the autopsy. On initial examination of the body he noticed right away there was what he believed to be a gun shot wound to the back of the head. He ordered X-rays of the skull which clearly slowed there was a bullet lodged in the upper left part of her skull. He completed the autopsy and found that she had been shot in the head and killed. An investigation pursued, hundreds and thousands of hours spent, but because of the tensions of the time between law enforcement and AIM, there wasn't much cooperation going on. So the case was not being solved. Years later as the years went on bits and pieces came in, and finally people started tc be willing to talk about this. Starting in approximately 1988 the defendant, Mr. Looking Cloud, started to talk to some JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 13 people about his involvement in Anna Mae's murder. He made statements to a number of people. We are going to bring those statements to you. You are going to hear that the statements are inconsistent in various areas depending on who he is talking to. You are going to hear Mr. Looking Cloud profess his ignorance that he didn't know what was going on. After you compile and listen to all those statements and the other evidence, it is going to show you through his own words from the time in Denver when Anna Mae Aquash was taken, bound and put in to that little red Pinto, when she was hauled bound and tied up to Rapid City, when she was hauled bound and tied up down to the Pine Ridge Reservation, to the Rosebud reservation and out to that cliff on the south edge of the Bad Lands where she was killed, Mr. Looking Cloud was there every step of the way. And when we are done with the evidence, ladies and gentlemen, we are going to ask you to find him guilty. Thank you. THE COURT: Counsel. MR. RENSCH: Thank you, Your Honor. Arlo Looking Cloud didn't kill anybody. Arlo Looking Cloud the evidence in this case will show didn't help kill Mrs. Pictou-Aquash. Arlo Looking Cloud today, this year, is a fifty year old man. In 1975 he was a 22 year old young adult. He was born in South Dakota, he lived on the reservation for a period of time, he lived in Denver for a period of time, and he spent his young JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 14 adult years in Sante Fe at an art school. You will find that this is a case of fate. You will find through the evidence in this case that what Arlo Looking Cloud became embroiled in was simply being in the wrong place at the wrong time. You see in December of 1975 Arlo lived in a place near the projects down in Denver. He lived with a woman by the name of Charlotte Zephier. He had a job selling art, making paintings, things of that nature. He had a little boy. Up to that point in his life he had had some problems with alcohol and with drugs, but he was doing well. And this weekend in early December of 1975 his path would change. You see, the woman who lived with him, Charlotte Zephier, was going on a trip that weekend, she was going to Nebraska and taking his son to Nebraska to visit some relatives. And what does Arlo do, the 22 year old young man that he is, he goes out on the town. He goes out on the town with a friend who was named Joe Morgan, and he goes drinking with this other young adult down in the streets of Denver, down in the bars of Denver, down in the haunts of Denver, and he drinks all night. And he comes home to his empty house, his woman is not there, his live-in girlfriend is not there with their child, and he sleeps off his hangover. And he sleeps all day. He sleeps all day, and he wakes up in the afternoon with a splitting headache, and little did he know his path was going to change. You see he gets out of his bed and he puts his clothes on and he decides to go downtown again JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 15 and try to find his friend Joe Morgan, and that's what changed his fate. When he dressed that evening, little did he know that Joe Morgan wouldn't be over at Yellow Wood's house. Troy Lynn was a friend of Arlo's, Troy Lynn was a friend of many people. Troy Lynn lived close to Arlo, so when he walked over to his house that night in late December, his intent was not to kill somebody or help premeditate the end of a human being, his intent was to go down drinking that day because he had a hangover, he appeared on the steps and knocked on the door to see if his friend Joe Morgan is there and Troy Lynn doesn't answer. Theda Clark is there. Theda Clark is a fifty'ish Indian woman at this point in her life who owns a bar in Colorado, Arlo had known her from before. He had driven for her from time to time, she would give him some drinks, let him drink in her bar, things of this nature. Theda on this night says to young Arlo, hey, we want you to drive up to Rapid City for us. Arlo doesn't really want to drive up to Rapid City for her. You will find evidence in this case that Theda Clark, well, she was older, she was pushy, and when she asked Arlo to drive to Rapid City, Arlo said okay, I will do it. His friend Joe Morgan wasn't there, and he was would just drive to Rapid City for Theda. As he steps in to the house of Yellow Wood's they don't really let him go many places in the house, they shoo him right down to the basement. And as he is walking down those basement steps little does he know he is JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 16 to 30 PAGE 16 about to meet two people that will change his fate for ever. As he is walking down those steps he doesn't know what is about to occur because no one has ever asked him or said anything was going to happen there, or asked him to come over there for any specific purpose, and as he is walking down those steps he sees an individual he had never met before by the name of John Graham. The evidence in this case will show that John Graham was known also as John Boy Patton and was a friend of Theda Clark's. There was a young woman laying on the couch under a blanket and they don't introduce her to Arlo. Arlo meets John Graham, also known as John Boy, they converse, don't talk really about much, and suddenly this John Graham is talking about a rope, and Theda is talking about a rope, and John Graham takes this young woman off of the couch, has her get up, and ties her hands behind her back. Arlo Looking Cloud doesn't know if they are together, doesn't know what their relationship is, doesn't really know what is going on, but he knows enough not to ask questions and not to talk to them about it. Well, John Boy leads this young woman, who turns out to be Anna Mae Pictou-Aquash, up these steps on this night in December of 1975. Arlo through the years has made statements about this, and you will find in this case that for thirty years approximately Arlo has been, well, not a productive member of society, he's lived on the streets, he has been drunk, he has used drugs, he has abused his body, and JERRY J. MAY, RPR. CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 17 he has done many things, I think that the evidence will bear out, that affect his memory and his ability to recall events and his ability to communicate about events, but that night this 22 year old boy who was there walked up those stairs and yes, he thought something was amiss, and he didn't do anything to stop it. And as they go out into the car this poor lady is put into the back of the car and Arlo drives. And he doesn't make any excuses about driving. But he thought that they were just going to Rapid City. Theda mentioned something about this girl talking too much. Nothing about we are going to take her to Rapid and she is going to be interrogated, nothing about we are going to take her to Rapid and she is going to be killed, nothing about please help us kill this woman in furtherance of the movement. So they drove all night to Rapid City. Arlo drives some of the time, he sleeps some of the time. There isn't much conversation in this car on the way up, and Arlo knows something isn't fitting right here, but he is not asking questions, and Theda and John Boy act as though they know what is going on, act as though they heard something about what might happen, but they don't talk to Arlo about it. They get to Rapid City in the early morning hours and they drive to an apartment that is up by the Mall out by the highway, Knollwood Heights. This apartment is rented by a woman that we find out later is named Thelma Rios. At the time Arlo did not know whose apartment it was, they get in to JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 18 the apartment, there is no furniture in the apartment, someone is either moving in or moving out of the apartment. John Graham sleeps in a room with Ms. Pictou-Aquash, Arlo sleeps on the floor, there is no furniture in there, they sleep for a period of time. Theda Clark, the fifty'ish Indian woman who asked Arlo to drive up there in the first place does not stay in this apartment, and they just sleep there. Arlo wakes up at some point in the day, we don't know just exactly what time of the day, and he takes the car down to put gas in it. And as Arlo is at the gas station he runs in to a person that he knew from living on the reservation by the name of Tony Red Cloud. And this Tony Red Cloud asks Arlo to come over to his house. Arlo goes over to his house, spends some time with him, eats with him, don't know whether they drink or not, but they spend a period of time together. Arlo goes back to the Knollwood Heights apartment, and Theda and John Boy are mad at him because he is gone with the car. As he gets back they say we have to go to the reservation. And everybody gets in the car, they drive down to the reservation, Arlo drives for a period of time, doesn't drive all the way, remembers stopping, remembers sleeping a period of time, remembers switching drivers, ultimately ends up out in front of a house in Rosebud near the hospital. And at this time he is with Anna Mae, he is with Ms. Pictou-Aquash, and John Boy Patton and Theda Clark go in to this house, they don't tell Arlo what they are going JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 19 in for, Arlo doesn't know what they are going in for. At this point he doesn't remember Ms. Pictou-Aquash saying anything about begging to be let go at that point. I guess the evidence will have to bear itself out on that. But none-the-less there's never been any discussion about anybody killing anybody up to that point in time. Up to this point in time they stopped several places in Rapid City, stopped on the side of the road and places to get gas and things like that. And John Boy and Theda come out of this house and Arlo is thinking, well, maybe I can finally get back to Denver. They come out, they get in this Pinto, they drive toward Kadoka. Arlo doesn't know what they are driving toward Kadoka for. He is wanting to go back to Denver, he is not driving the car, Theda is driving the car. John Boy is there, and they act as though they know what is going to happen, but nobody talks about it. The car pulls on that lonely highway going north toward Kadoka, straight up on the map to Kadoka, and Theda Clark pulls a U-turn and goes back and forth several times and stops on the side of the road. As she stops on the side of the road there is no conversation about what is going to occur. As she stops on the side of the road John Boy Patton gets out of that car, John Boy Patton who is bigger than Arlo, John Boy Patton tells Ms. Pictou-Aquash to get out of the car and begins leading her off in to the ditch. At this point it is either John Boy or Theda say to Arlo come on, get out here. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 20 Arlo gets out of that car, he does not know what is going to happen, he starts to walk up there, he doesn't march her up to the side of the cliff, he doesn't grab her arm. He doesn't help take her to the cliff. He is following along not knowing what is going to happen, and he is thinking they are going to let her go way out here. Then he hears her start to pray, and in his mind he starts to think we are going to pray. Bam, at that point John Boy Patton pulls out a gun and shoots this woman in the back of the head. Arlo reels from it, Arlo did not know that was going to happen. Arlo has never met this man before. She falls over this cliff, the white shale cliff of the Bad Lands, she falls 25 feet down into the bottom of this ravine. The photo you see here was taken years later, but in the pictures you see in the evidence in this case it is white shale, it is clear, free of vegetation. And Arlo standing there on this edge of this ravine, and John Boy Patton turns around and he looks at him and he has a gun, and what does this young 22 year old man think of? What does he do? He doesn't know what is about to happen. He says to Graham give me the gun. Graham reaches out, hands him the gun. And Arlo fires the gun over the ravine until the gun is empty, and he did it because he was afraid this man who just put a bullet in this woman's head would do the same to him. And he hands the gun back to him, relieved that the gun is empty. As he hands the gun back, they walk back to the JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 21 vehicle. They get in the vehicle. They start going back to Denver. They stop at a bridge and John Boy Patton, John Graham wants to bury the pistol. Arlo wants to help bury the pistol, because if John Graham doesn't have a pistol, then no one else will get shot. They go down below the bridge and Arlo helps dig that hole and they bury that pistol, and they drive to Denver. When they get to Denver Arlo Looking Cloud falls off the face of the earth as it relates to the American Indian Movement. When they get to Denver he stays away from the American Indian Movement. While he lived close to Troy Lynn, and we will see her, and she is a friend of his and had been a friend of his prior to that time, and while he may see Theda from time to time because they live in the same town, he stays away from the American Indian Movement. You will hear evidence in this case that on the other hand, Mr. Graham, John Boy Patton had a meteoric rise in the American Indian Movement, and you will hear evidence in this case he was sun dancing with the National AIM president, and you will hear evidence in this case that he actually, well, he stayed with the Movement. The story doesn't end there. The story doesn't end there. The story also picks up in 1994. In 1994 when Arlo Looking Cloud sits down with the FBI, sits down with the BIA, sits down with a lawyer, and tells them what happened, and at the end of this long interview when Arlo Looking Cloud told the authorities how John Graham executed Anna Mae, Arlo JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 22 is released just to go right back out on the streets and be a street person. You will hear evidence again that the following year, the following year in the summer of 1995 this man, Arlo, five foot six and a hundred fifty pounds is approached again by the authorities, and they asked to take him out to the scene near Kadoka and to the various places that he traveled in this ever changing day of fate, and this crossroads of his life, this December, 1975 that changed his existence for ever. And what does Arlo Looking Cloud do, he goes with them and he explains to them just exactly how John Graham executed this woman that Arlo had never met before. At the close of this case I will be asking you to decide the main issue in this case. Which is whether or not the government can prove beyond a reasonable doubt that Arlo Looking Cloud aided and abetted a murder and had the intent for somebody to die. I will ask you, too, to look at his words and understand that a young man who was merely present at something so horrible as a murder is not responsible in the way the shooter is. Thank you. THE COURT: Call your first witness. MR. McMAHON: Call Roger Amiotte. ROGER AMIOTTE, called as a witness, being first duly sworn, testified and said as follows: JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 23 DIRECT EXAMINATION BY MR. McMAHON: Q. Roger, would you tell the jury your name, please? A. Roger Amiotte. Q. You can sit back a ways from that mic. Where do you live, Roger? A. I live eighteen miles south of Kadoka, or ten miles east of Wanblee. Q. What is your occupation? A. Pardon? Q. What do you do for a living? A. I am a rancher. Q. How long have you ranched? A. Since I was seventeen. Q. Did you ranch in that area during February of 1976? A. Yes, I did. Q. During the February of 1976, did you have an occasion to discover a body on your land? A. Yes, I did. Q. Would you tell the jury how that happened? A. Oh, I was getting livestock out on the highway which adjoined my pasture, and I was checking fences, and with a plan of extending a fence in to a Bad Land wall. When I rounded the curve, rounded the curve in a draw or a gully, and discovered a body. 25 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 24 Q. Was that body laying at the bottom of a cliff? A. Yes, it was. Q. What did you do when you discovered the body? A. I immediately returned to my house, which is a mile away, and called the Tribal police. Q. Then did they come to your house? A. Yes, they did. Q. Did you take them out to where the body was? A. Yes, I did. MR. McMAHON: Your Honor, do you want me to ask permission to approach each time? THE COURT: No, you can approach. (Exhibit 4 marked For identification.) BY MR. McMAHON:. Q. Mr. Amiotte, I hand you what's been marked Exhibit 4, Can you tell me what that is? A. That would be the body that I discovered. Q. Is that a picture of the body as you actually saw it there that day when you first found it? A. Yes, it is. As near as I can tell that would be. MR. McMAHON: Offer Exhibit 4, Your Honor. MR. RENSCH: No objection. THE COURT: Exhibit 4 is received. 25 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 25 MR. McMAHON: May I put this on the screen, Your Honor? THE COURT: You may. BY MR. McMAHON: Q. Mr. Amiotte, can you see the picture on the computer next to you? A. Yes, I can. Q. Is that the same picture you just identified as Exhibit 4? A. Yes, it is. Q. Last year did you have an occasion to show Mr. Bob Ecoffey where that body was located when you found it? A. Yes, I did. (Exhibit 8 marked For identification.) BY MR. McMAHON: Q. I am going to hand you Exhibit 8. Is that a picture that shows part of the land that you ranch? A. Yes, it does. Q. Does it also show where the body was located? A. Yes, it is accurate. Q. Did you in fact take Mr. Ecoffey out there to show him where the body had been located? A. Yes, I did. JERRY J. MAY, RPR. CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 26 Q. And you see a little white area in that photograph? A. Yes, sir. Q. Is that where the body was located? A. Yes, it is. Q. Let me ask you, Mr. Amiotte, is that land within the confines of the Pine Ridge Indian Reservation? A. Yes, it is. Q. Is it land that is held in trust? A. Yes. Q. One more thing. In that picture I think if you look at the back of it, it was taken in August of 2003? A. Yes, sir. Q. Does that picture accurately depict the land as it looked back in 1975? A. Well, not exactly, because owing to erosion, natural erosion will, the cliff or the bank at the bottom where she was laying is now, or is now less vertical than it was at that time. Q. So that cliff isn't quite as steep now? A. Pardon? Q. The cliff isn't quite as steep now as it was? A. No, it isn't, it is more of a gradual. Q. Other than that, is it a pretty accurate depiction of what the land looked like in 1975? A. Yes, it is. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 27 Q. In that picture between the highway and that cliff, it is hard to see, but it looks like there is a fence along there. Let me just ask you, was there any fence located between the highway and that cliff where you found the body in 1975? A. No, there wasn't. This is basically, it was unfenced for probably a stretch of a half to three quarter mile. MR. McMAHON: Offer Exhibit 8, Your Honor. MR. RENSCH: No objection. THE COURT: Exhibit 8 is received. MR. McMAHON: May I publish that, Your Honor? THE COURT: You may. BY MR. McMAHON: Q. Mr. Amiotte, would you draw a circle around the white area where the body was located. Just put your finger on the screen and draw a little circle around it. A. (Witness marks exhibit). Q. The fence that I was talking about, is this the fence that is there now that runs right along there? A. Yes, it is. Q. That wasn't there back in '75? A. No, that was entirely open to the highway at that time. (Exhibit 6 marked For identification.) JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 28 BY MR. McMAHON: Q. Mr. Amiotte, I am going to hand you what's been marked Exhibit 6. I would like you to take a look at that and tell us if you recognize that? A. Yes, I do. Q. What is it? A. It is a picture of the body that I discovered, and it appears to be a picture of myself setting at the top of this. Q. Was that taken back when you first discovered the body? A. Yes, I am sure it was. MR. McMAHON: Offer Exhibit 6, Your Honor. MR. RENSCH: No objection. THE COURT: Exhibit 6 is received. MR. McMAHON: May I publish this? THE COURT: You may. BY MR. McMAHON: Q. Should be on your computer screen now, Mr. Amiotte. Is that the picture that you just identified as Exhibit 6? A. Yes, it is. Q. How far is that from the top to the bottom of that cliff approximately? A. Approximately thirty foot. MR. McMAHON: Thank you, I have no further questions, Your Honor. THE COURT: Cross examine. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 29 MR. RENSCH: Thank you. CROSS EXAMINATION BY MR. RENSCH: Q. Afternoon, sir. A. Good afternoon. Q. How far is it from the edge of the road to the tip of the cliff? A. Approximately a hundred foot. Q. Do you call it a cliff, or do you call it a ravine, what do you refer to it as? A. Well, actually it was a natural barrier for livestock at that time. The east side of it was pretty much a cliff situation. Q. How close did you get to the body, sir? A. Somewhere between thirty and fifteen feet. Q. Did you see any bullet holes in the ground? A. No, I didn't. Q. Did you find any rope or anything up on top of the cliff? A. No, sir. Q. Other than the body being present, did you see anything that was out of the ordinary about the ground around the body? A. No, sir. MR. RENSCH: Thank you, nothing further. THE COURT: Any redirect? MR. McMAHON: No, Your Honor. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 30 THE COURT: Very well, thank you Mr. Amiotte, you may step down. Call your next witness. MR. MANDEL: United States would call Nate Merrick, Your Honor. NATE MERRICK, called as a witness, being first duly sworn, testified and said as follows: DIRECT EXAMINATION BY MR. MANDEL: Q. Good afternoon, sir, could you state your name, please? A. My name is Nathan Merrick. Q. Mr. Merrick, where do you live these days? A. I live in Walthill, Nebraska. Q. What do you do down there? A. I work for the Tribal Court, Omaha Tribal Court, I am a public defender, paralegal. Q. Back in 1975 were you employed on the Pine Ridge Indian Reservation? A. Yes, sir, I was. Q. When did you start working there? A. I arrived at Pine Ridge in 1973 just during the Wounded Knee occupation. I was a police officer assigned there for the Bureau of Indian Affairs. Q. Was that your first assignment? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 31 to 45 PAGE 31 A. No, just prior to that I was in Crow Creek at Fort Thompson, South Dakota in 1972. Q. Was that your first law enforcement job? A. No. In 1969 I was a Tribal police officer for the Omaha Tribe in Nebraska, so I kind of moved into the Dakotas in the early seventies. Q. In February of 1976 were you still there working for the BIA on Pine Ridge? A. Yes, I was. Q. Did there come a time when you became involved in a death investigation that occurred out on the Roger Amiotte ranch south of Kadoka and east of Wanblee? A. Yes, I was a criminal investigator for the BIA. Q. Can you tell us how you got the call on that, what happened, how you got involved in it, sir? A. On, I can't recall exactly the day, but I remember that it was a very sort of a warm day in February, and I was notified by the police department through the radio dispatch that investigators were needed, and the FBI was needed out near the Amiotte ranch toward Wanblee and Kadoka, in that area. Q. How come both the criminal investigators and FBI would respond to something of that nature? A. Any time a body was found or there was a need to, for an investigation, they always send for BIA criminal investigators JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 32 and the FBI to conduct the investigation. Q. Do you recall what you observed when you arrived there? A. Yes, it was, like I said, kind of a warm day for February, and about sixty to seventy yards west of the highway between Kadoka and Wanblee we were told that there was a body down in a ravine, laying down in a ravine, and it appeared to be a female. Q. What did you do then, sir? A. We went, walked to the scene and we conducted a crime scene investigation, but I went and took some pictures and observed the area, and we picked up a little evidence. Q. Can you tell us what evidence you collected there at the scene that you recall? A. I specifically remember we were picking up pieces of hair strands off of the bank of the ravine. It was about like an eighteen foot ravine, it was kind of high, but along the edge of the bank there was strands of hair, I remember collecting that. Also taking a picture. Q. Pictures you said, did you take 35 millimeter pictures, or Polaroids, or what? A. Yes, I took 35 millimeter pictures and I also took Polaroids together. (Exhibit 5 marked For identification.) JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 33 BY MR. MANDEL: Q. Sir, I am going to draw your attention first to what has been marked Exhibit No. 5, do you recognize that photograph? A. Yes, I recognize it. Q. Can you tell us what is shown in that photograph? A. This is a picture of a arm with a bracelet, an Indian type silver bracelet with a turquoise stone in the middle of it, and appears to be the right arm of the body of an unknown female person. Q. Is that a photograph that was taken at the crime scene that day? A. Yes, it was. Q. Do you recall you are the individual that took that photograph? A. Yes. Q. Does that accurately show that as you saw it? A. Yes. Q. And that one is a Polaroid photograph you said? A. Yes, it's a Polaroid. (Exhibit 23 marked For identification.) Q. I ask you also to look at Exhibit No. 23 if you could. Do you recognize that photograph, Mr. Merrick? A. Yes. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 34 Q. Can you tell us about that photograph and how, when and how that was taken? A. It is the same picture of the same individual, same person, same bracelet, same hand, same arm that I just described in the other picture. Q. Was that a photograph that you also took on that day? A. Yes. Q. Does that accurately show things as they appeared at that time? A. Yes, they do. (Exhibit 28 marked For identification.) Q. Finally, sir, I am going to ask you to look at what has been marked Exhibit No. 28. Do you recognize that photograph? A. Yes. Q. Can you tell us what is shown in that photograph? A. It is a photograph of a decomposed body of an Indian, appears to be a female with black hair with sort of a red light jacket with a white colored blouse, bluejeans, lady wearing bluejeans. Q. Is that also a photograph that you took on that date? A. Yes, it is. Q. Does that accurately show things as they were at that time, sir? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 35 A. Yes. MR. MANDEL: Your Honor, at this time I would offer Exhibits number 5 and 23. I am going to reserve my offer on 28. MR. RENSCH: No objection. THE COURT: Exhibits 5 and 23 are received. MR. MANDEL: May I publish those, Your Honor? THE COURT: You may. BY MR. MANDEL: Q. Mr. Merrick, can you see that on the screen just to your right? A. Yes, I do. Q. Can you tell me why you particularly took that photograph on that date? A. The reason was because the bracelet was something that I thought that somebody might be able to recognize, because we obviously had a person who wasn't identified. That's the reason I took the picture of that bracelet. Q. When you were there at the scene, can you describe generally what the condition of the body was? A. It was dark in color, and decomposed, and like the body had been there for some time, that's how I can describe it best. Q. Did you feel from what you saw at that time that the face was recognizable? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 36 A. No. I couldn't recognize the face. It was all dark and disfigured, so it was deteriorating. Q. What action was taken at the scene then in terms of removing the evidence and removing the body? A. At that time the body was taken out of the ravine and I believe transported by the ambulance service. We didn't take any of the clothing at that time, all that was taken to Pine Ridge to the hospital where the morgue was. We didn't take anything at that time, just except the pictures, and then did a crime scene. Q. By doing a crime scene, what would that entail? A. Well, mostly photographs, and then at that time just trying to collect any evidence, or see if there was any evidence on the area above the ravine. And the only thing we found was that hair, and was looking for tracks, but we couldn't find any tracks because of the condition of the ground and everything, and probably been there for some time. So we were not able to. And I did take some measurements from the highway to the location of the body, and I did a small sketch. Q. Mr. Merrick, as criminal investigator on the scene did you have any idea what the cause of death was at that time? A. At that time looking at the body and the way the condition was, general consensus was that she probably was murdered or killed by someone. There was blood underneath of JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 37 her head. The hair coming from the side of the ravine. And I just felt that somebody threw her down in the ditch, down into the ravine. Q. Was there any evidence collected at the scene other than the hair that supported that? A. Not that I can recollect. Q. Was there any evidence of any guns being discharged there? A. We couldn't find any evidence of that. Q. Did you search for such evidence? A. We looked around the area as thoroughly as I thought we could, but I couldn't see any evidence of that, any guns, no. Q. So what was the next action that was taken in order to further this investigation? A. The body was transported back to Pine Ridge, and then we met with our, my supervisors, and then there was plans being made for an autopsy. That was the next thing that I remember being involved with. Q. Was there a pathologist there in Pine Ridge? A. At that time the Bureau of Indian Affairs law enforcement, I believe we had the services of a Dr. Brown from Scotts Bluff, a pathologist who came regularly to conduct autopsies for us. Q. Was he summoned to come up there and perform that autopsy? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 38 A. Yes, he was. Q. Were you present during any part of that autopsy? A. When the autopsy began I was present. When Dr. Brown arrived and went into the autopsy room, I was present in there then. Q. Sir, can you describe as best you remember who else was present? A. It's been a lot of years ago, and the best I can remember, it was an FBI agent and I think maybe two FBI agents and myself. I can't remember any more than that. Q. Were you there then when the autopsy proceeded, sir? A. When the autopsy first started I was in the room, yes. Q. Did you leave the room at some point? A. Yes, after we got into the room and the smell and the stench of everything was overcoming to me, and I didn't stay in there very long. I walked out of the autopsy room. Q. Do you recall did anybody staying there other than the doctor? A. I recall that when I walked out, others walked out with me, the other FBI agents. We just walked out in the hall because the stench and everything was really overcoming to me. Q. Was there some problem with the equipment that day in terms of doing everything that needed to be done at the autopsy? A. Just prior to the autopsy I spoke with, I don't recall JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 39 names, but there was a young lady, a white lady who worked as like an X-ray technician that worked there at the IHS hospital, and I specifically asked if they could do an X-ray. MR. RENSCH: Objection, hearsay. THE COURT: No hearsay yet, but I suspect we are getting to hearsay. So we will see. But not yet. So the objection is overruled at this point. Go ahead. BY MR. MANDEL: Q. Was it possible to do an X-ray that day? A. No. Q. Why was that? A. I was told the machine was broke. X-ray machine. Q. So no X-ray was performed at that initial autopsy? A. No. Q. What took place after the autopsy, sir? A. Right after the autopsy there was discussion about the identification and what could be done to determine identification, what could we do at that time. We talked about that. Q. Do you remember who was involved in that discussion? A. Another FBI agent, maybe two FBI agents and myself. Q. Was the doctor involved in that at all, sir? A. I think the doctor was standing by waiting for instructions from us. Q. Was some decision reached as to an action to take to JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 40 effect the identification? A. Yes. Q. Do you know who made that decision? A. The actual decision to do that was kind of a joint agreement between all of the investigators that were there, the FBI and myself. We decided that we should take the hands from the corpse so that we can try to get some identification. Q. Was that a procedure you were familiar with? A. Yes. At that time that was probably the only way that we were going to be able to find some identification through the fingerprints. Q. Was there some reason that the hands couldn't be fingerprinted there? A. Yes, that was part of the discussion. The hands were so shriveled up, black, they were like shriveled up, dried up, no possible way we could take fingerprints then, they would have to be done in a laboratory or something. Q. Did the doctor then remove the hands from the body? A. At our request he did. Q. Then what was done with them? A. They were placed in a jar with like I believe it was formaldehyde or something, and I took the jar. Q. What did you do with them then? A. He gave the jar to me, and then I in turn handed it off to an FBI agent, and that was their person there that day for JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 41 him to see if he could get it to a laboratory for identification purposes. Q. After the, you know that agent's name, sir? A. Yes, I believe. Q. Who would that have been? A. It was Don Dealing. Q. After that action was taken, then what happened regarding the body, sir? A. Repeat that question again? Q. What did they do with the body after the autopsy, if you know? A. That day after the autopsy was over I had an emergency back in Nebraska, so I left the next day. As far as I knew from my recollection was when I left that day that body was still there at the hospital. Q. It was with the intentions to keep it there until the identification was made? A. Yes. Q. Is that what in fact happened, if you know? A. I left for several days for an emergency home visit. I live in Nebraska down about five hundred miles away. And then I came back to the reservation at Pine Ridge about a week later, so a lot of things did transpire while I was gone that I wasn't aware of. Q. Were you involved with the investigation of this case JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 42 further on after the body had been identified? A. After that I believe the FBI took the major role in conducting further investigation in to it, but that was all of it, I did that time. Q. That pretty much the end of it for you? A. Yes. MR. MANDEL: No further questions, thank you. THE COURT: Cross examination. MR. RENSCH: Thank you, Your Honor. CROSS EXAMINATION BY MR. RENSCH: Q. Good afternoon, sir. A. Yes, sir. Q. You have a pretty good recollection of all this? A. It's been a lot of years, I have some recollection of it, yes. Q. You find that through the years you forget some of it? A. That's possible. Q. What does it mean when you process a crime scene? A. It means we look for evidence and we document everything that we see. Q. You look for clues to try to figure out what happened, don't you, sir? A. Yes. Q. And you looked for clues to try to figure out what happened in the immediate vicinity of this body, didn't you, JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 43 sir? A. Yes. Q. You actually, did you actually help move the body, turn it over to take the photograph of the hand? A. Did I actually move the body? Q. Yes? A. No, I didn't. Q. Who moved the body so that the photograph of the hand could be taken? A. I believe it was -- see there were police officers at the scene, too. I believe that they are the ones that sort of moved the body over so I could get the picture. Q. You didn't just let anybody who wanted to come in to that area where the body was, did you, sir? A. No. Q. Why not? A. Because it was basically a crime scene. Q. Why would it be important to keep people out of a crime scene? A. So that we can retain, or find evidence and keep it. Q. You wouldn't want people walking around that body because they might step on something, or cover it up, or change it so that the evidence wouldn't be preserved, would you agree? A. Yes. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 44 Q. Did you examine the area, the immediate ground around the body? A. Yes. Q. Did you note anything unusual about the ground around the body? A. Nothing unusual, no. Q. You didn't find any bullet holes? A. No. Q. You didn't find any ricochet marks or anything like that, did you, sir? A. No. Q. You didn't find any rope any place? A. No. Q. These strands of hair, where did you find the strands of hair? A. As I said, right off the embankment, coming off the embankment, about halfway down the embankment. Q. So they were about halfway down the embankment laying on the dirt there? A. They were like hanging down, you know, they were just. (indicating). Q. Did you ever try to get a metal detector out there to see if you could detect any metal? A. I never had a metal detector. Q. You didn't find anything up above because it was grassy JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 45 up there, isn't that so, sir? A. Well, how do you describe grassy, what do you mean? Q. Well, there was grass up there, so there weren't foot prints up there? A. Well, there was sort of grass up there, but there was ground. I don't know what you describe the ground like unless you have been out there. It wasn't all full of grass, it was dirt there. Dirt ground. Q. And the ravine that this poor woman fell in to, that wasn't full of vegetation, was it, sir? A. No. Q. It was dry dirt down there, wasn't it? A. Yes, appeared to be. Q. What color was the dirt? A. Sort of brownish. Brownish colors, you know, different shades of brown. Q. Would you say light colored dirt? A. It's possible it could have been light, different just colors of dirt. (Exhibits A - E marked For identification.) Q. I show you Defendant Exhibits A through E, these are blow ups of photographs you took. Look at them and tell us if they are? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 46 to 60 PAGE 46 A. Are these Polaroid pictures? Q. I don't know. A. I can't tell if they are Polaroid or not. I know I took Polaroid and 35 millimeter, but I did take pictures of the body like this, yes. Q. So that would fairly and accurately depict the scene that were you attempting to preserve by taking those photographs, would you agree, sir? A. Yes. MR. RENSCH: I move admission of Defendant's Exhibits A through E, Your Honor. MR. MANDEL: May I see them? MR. RENSCH: Yes. MR. MANDEL: No objection. THE COURT: Exhibits A through E are received. BY MR. RENSCH: Q. How far out from around the body did you look for evidence? A. Probably maybe around the entire area. Quite a ways. We went, if I remember, it was like we did a kind of a walking grid search all around on the upper part, about from there to the highway back and forth numerous times like in a pathway trying to find something that might be evidence from the highway to where the edge of the ravine was. Q. How about down in the ravine itself, did you likewise JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 47 search the area of the ravine? A. Yes, I think I and some investigators looked around that entire area, around the body, and trying to find anything that we could. MR. RENSCH: Nothing further, thank you. THE COURT: Redirect. REDIRECT EXAMINATION BY MR. MANDEL: Q. Just so I am clear, Mr. Merrick. You examined the scene both at the top of that Bad Lands wall there and at the bottom where the body was found, correct? A. Yes, I went up to the top and I looked down and I looked down, I looked up, I looked as much as I could. Q. The body wasn't discovered until February 24th, is that correct, sir? A. Yes. Right in that neighborhood, yes. Q. Here is my question. Is it possible as you are up on the road there on Highway 73 to see that body from the road anywhere? A. No. Q. Where would you have to be to see it? A. You would have to be on the opposite side of the ravine or up in a high upper area to be able to look down toward it. You wouldn't be able to see it from the highway, no. Q. Is it a fairly remote location? A. Yes. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 48 MR. MANDEL: Nothing further, Your Honor. THE COURT: Anything further? MR. RENSCH: Nothing further. THE COURT: Thank you, you may step down. Well, is your next witness a shorted one or a long one. MR. MANDEL: I have one that is, be pretty short, Your Honor. THE COURT: Call your next witness. MR. MANDEL: United States would call Jim Glade, Your Honor. (Bench Conference) MR. McMAHON: Your Honor, may we approach? THE COURT: You may. MR. McMAHON: We forgot to visit with you about a sequestration order, but we are agreed. None of our witnesses have been in here, I don't know about his. MR. RENSCH: I don't even know what mine look like, but I don't think they are here. And I meant to move for that as well. THE COURT: I meant to ask you and I forgot. It is granted as to each. MR. McMAHON: Are you going to announce that if there are any in here they should leave? THE COURT: Yes. (End Bench Conference). JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 49 THE COURT: I am going to enter a sequestration order. What that means is that if there are any people in the audience that are going to be witnesses or might be witnesses in the case, then you have to step out. You can't stay during any proceedings. If anybody is in the audience that is going to be a witness, because if you don't step out and you become a witness, you might not become a witness, because I might not let you testify. That's what a sequestration order does. Alright, proceed. JAMES GLADE, called as a witness, being first duly sworn, testified and said as follows: DIRECT EXAMINATION BY MR. MANDEL: Q. Sir, could you state your name, please? A. James Glade. Q. What is your occupation, Mr. Glade? A. I am a range land management specialist with the Bureau of Indian Affairs at Pine Ridge. Q. What is the spelling on your last name, sir? A. G-L-A-D-E. Q. What are your duties there in that capacity, Mr. Glade, what kind of things do you normally do? A. Well, I take care of the grazing permits, the land JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 50 schedules that go with the permits, contracts. Q. As such are you familiar with the land status of various lands located on the Pine Ridge Indian Reservation? A. Yes. Q. Sir, I am going to show you a photograph, if you could look at. It will come up on that screen to your right there. Sir, I am going to ask you if you have seen that before and if you are familiar with that particular area? A. Yes. Q. Sir, I am showing you what's been marked as Exhibit 8 already and admitted into evidence. Now can you tell us first of all what the location of that particular piece of land is generally speaking? A. It is on the reservation on the highway between Martin and Kadoka. Q. Is that highway state Highway 73? A. Yes. Q. How far is that from the junction of Highway 44 and Highway 73, if you follow the road? A. About 3.3 miles. Q. Sir, would that be to the north of Highway 44? A. Yes. Q. You see in about the center of that photograph, sir, there is a white rectangular area? A. Yes. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 51 Q. Have you been out to this particular scene to view this area? A. Yes. Q. As part of your duties did you check on the land status of this particular location, sir? A. Yes. Q. Can you tell us what the status of the land is there? First of all, is that land located within the confines of the Pine Ridge Indian Reservation? A. Yes. Q. And is that land that is held in trust? A. Yes. Q. When we say land that is held in trust, sir, what does that mean? A. That means that it is held in trust by the United States for an individual or a tribe. Q. For an individual Indian person or a tribe? A. Yes. Q. Is that land ranched by a particular individual that you are familiar with? A. Yes. Q. Who would that individual be, sir? A. Roger Amiotte. MR. MANDEL: No further questions, Your Honor. THE COURT: Cross. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 52 MR. RENSCH: No questions, Your Honor. THE COURT: Thank you. Thank you, you may step down Mr. Glade. Now we will go in to recess unless you have another short witness. MR. MANDEL: Not that short, Your Honor. THE COURT: Now I want to give the jury some oral instructions. This is the end of the first day of trial, and you are going to go home and your neighbor or your significant other, or your spouse, your children, parents, your friends, whomever you have contact with is going to know you came here to jury duty. Naturally the first question they are going to ask you is well did you get picked? The answer is yes. But then the next natural thing they are going to say, well, what is it about, they are going to want to talk to you about it. Well, you can't talk to them about it. The problem is that you start talking about it at all and you are on kind of a slippery slope. You know, they haven't heard any of the evidence, they might have read something in the paper, they might have heard something on the news. But remember we don't decide these cases based on that, we decide the cases based upon what you hear from the witness stand, the Exhibits that are received into evidence, and also the instructions on the law that I give you, and all of the rest of it is not material. That's part of your oath as judges of the facts. So you can't talk to anybody at all about the case. You can't JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 53 talk to each other about it either, because the only time you can talk to each other about the case is when all the evidence is in, the lawyers have argued at the end of the case. That's not evidence, only to help you in looking at the evidence. And you have heard my instructions on the law, which are much more detailed than I have given you already, it's only then you can deliberate on the case. Don't dig out an old law book or anything, do any independent research, do any factual reading and going back and looking at the newspaper or anything like that. Likewise don't make up your mind about the case. Wait until you have heard all of the evidence and you have deliberated, that's when you should make up your mind, not until. So thank you very much for your service, we will start again at nine o'clock tomorrow morning. Thank you, please stand for the jury. ( Jury Leaves at 5:00 ). THE COURT: Counsel to stay. Please be seated. I am not shopping for bringing anything up, but my only point is if there is something, anything that is brought up, I would like to have it brought up now rather than tomorrow morning, because, as you know, Judges like to be able to think about things. I am not aware of anything, I am just telling you that. That doesn't mean if something comes up you can't bring it in in the morning, it's just that I have a strong preference for getting it now. If there is anything, I would JERRY J. MAY, RPR/ CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 54 like to hear about it. MR. McMAHON: I am not aware of anything. MR. RENSCH: I am not either. THE COURT: That's great, see you in the morning. We are in recess. (9:00 a.m., 2-4-04.) THE COURT: Bring in the jury, please. Good morning. Call your next witness. MR. MANDEL: United States would call Don Dealing, Your Honor. DON DEALING, called as a witness, being first duly sworn, testified and said as follows: DIRECT EXAMINATION BY MR. MANDEL: Q. Sir, could you state your name, please? A. Donald A. Dealing. Q. What is your current occupation? A. I am retired. Q. Where are you retired from? A. The FBI. Q. What years of service did you put in with the FBI? A. From October of 1970 through April of 1996. Q. Was all that time spent as a Special Agent for the FBI? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 55 A. Yes, it was. Q. As part of your duties did you at some point become assigned to work out of Rapid City on the Pine Ridge Indian Reservation? A. Yes, I did. Q. When did you first begin your assignment there, sir? A. In July of 1975. Q. While you were there at Pine Ridge did you become involved in the investigation of a murder that, where the body was found on February 24, 1976? A. Yes, I did. Q. Was that an individual ultimately determined to be Anna Mae Pictou-Aquash? A. Yes. Q. Sir, can you tell us what your first involvement in that matter was? A. Well, I actually was the first agent that was present at the scene of the crime, or the scene where the body was found. Q. When you were notified where were you, sir? A. At the police station in Pine Ridge, the BIA police station. Q. About how far is it from there to the scene? A. I really, mileages are not my strong suit. It takes a while to get there, I don't recall how long it was. Q. When you arrived at the scene what did you observe, sir? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 56 A. There were people there already, and we went to where the people were gathered, and there was a body laying at the base of a cliff, if you will. Q. Did you observe the condition of the body? A. Yes, I did. Q. Can you describe to us what the condition was? A. The skin was black, badly deteriorated. The body was clothed, but the body itself was in I would say an advanced stage of deterioration. Q. In terms of the ability to identify that body, how would you describe her? A. I would have to say unidentifiable. Q. What decision was made then in terms of dealing with the crime scene and the body, sir? A. Well, the clothes were gone through, the pockets and that sort of a thing, to try to find some identification. There was some jewelry on the body, and we checked to see if we could remove the jewelry to see if there was a name inscribed on the back or something like that, and the skin came off with it, so we left that alone. Took photographs, and inspected the crime, or inspected the scene. Q. Was that piece of jewelry a bracelet on one of the hands? A. Yes, it was. Q. Did you then seek to have an autopsy performed in this JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 57 case? A. Yes, we did. Q. Can you tell us what occurred in that regard, sir? A. There was an examiner from Nebraska that was the person who was used for that type of activity, and we notified him. The body was transported to the hospital at Pine Ridge, and Dr. Brown is his name, he came up and performed the autopsy. Q. Were you present at the autopsy, sir? A. No, I was not. Q. Were you initially assigned this matter as the case agent? A. Yes, I was. Q. What does that mean in FBI terminology? A. As a case agent, you direct the investigation. Information comes to the case agent, and you analyze it, decide what to do next. If you need help, you ask for help, and that sort of a thing. Q. Were steps taken to identify the individual whose body was found? A. Yes. Q. Can you tell me what steps were taken, sir? A. Oh, we did things including contacting other agencies to see if there was any missing person report filed. We did take that piece of jewelry and went to stores that handled jewelry to see if they would recognize it, for instance, and be able JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 58 to say who, remember who had purchased it. Circulated a description that we could get from the body, and just tried to find out who the missing person was. Q. Were other steps taken to identify the body through fingerprints? A. Yes, indeed. During the autopsy we had the coroner remove the hands so that they could be sent into the FBI laboratory where they are able to take fingerprint impressions from dead skin and deteriorated skin. Q. Did an FBI agent ultimately take custody of those hands and send them in? A. Yes. Q. Who would that have been, sir? A. That was John Munis. Q. Did you retain this case, or was the case reassigned at some point? A. The case was reassigned fairly quickly. Q. Who received the assignment then? A. I can only give you my best recollection, I am not sure of that. I think it was Bill Wood. Q. After that did that pretty much end your involvement with it? A. Yes. MR. MANDEL: I have no further questions, Your Honor. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 59 THE COURT: Cross exam. CROSS EXAMINATION BY MR. RENSCH: Q. Morning, sir. A. Good morning. Q. In 1975 were you a Special Agent for the FBI? A. Yes. Q. What did your duties include? A. As of when I arrived in Rapid City? Q. Yes, in 1975? A. General case work. Most of our case work at that time was down at the Pine Ridge Reservation. I was assigned cases just routinely for whatever felony types of things, complaints came in. Q. Were you in any way involved in the cultivation of informants? A. Yes. Q. How so? A. As a Special Agent that's one of your duties is to cultivate informants, try to find places, sources of information. Q. Was there any particular program that you were following in 1975 concerning the cultivation of informants? A. My answer is no, other than the FBI program. Q. What is the name of the FBI program? A. Well, it is just part of a job description. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 60 Q. Have you ever heard of COINTELPRO? A. Yes. Q. Is that what it is? A. I frankly don't, I have heard about COINTELPRO through media and that sort of a thing, but I frankly have never been involved in whatever that was. So I don't know what that is, I am sorry. Q. In 1975 then you had no special training in anything to do with COINTELPRO, is that your testimony, sir? A. That's correct. Q. Were you aware of any other Special Agent or field officer in this district or in this area, the area of Western South Dakota, who was involved in that program? A. No, sir. Q. Were you aware of the individual named Anna Mae Pictou-Aquash before her body was discovered? A. I believe that I knew that there was a fugitive by that name. It is hard to say when I first heard about that name. So I would say probably at that date I was aware that such an individual existed. Q. Prior to that time how many other cases had you been involved in where someone's hands were cut off to identify them? A. None that I recall. Q. Since that time how many cases have you been involved JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 61 to 75 PAGE 61 with where someone's hands were cut off for identification? A. None that I recall. Q. When you send in fingerprints with the FBI back in 1975, a person has to look at the fingerprints and compare them with other fingerprints to see if they are the same, isn't that correct? A. Would you mind restating that question? Q. I would be happy to. When you sent in fingerprints back in 1975, with the technology that was available in 1975, you had to know of a set of fingerprints that they could be compared to to see if they were a person's fingerprints, did you not? MR. MANDEL: I object to this as beyond the scope and not within this witness's expertise. THE COURT: Sustained. BY MR. RENSCH: Q. When these hands were sent in to determine the identification, do you know if any information was forwarded along that they might be Ms. Anna Mae Pictou-Aquash's hands? A. Well, I did not prepare a communication, but in my own mind I am certain there was no information like that sent in. Q. Incidentally, were you involved in taking a metal detector out to the scene to try to see if there were any bullets or anything like that? A. No, sir. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 62 MR. RENSCH: Thank you, nothing further. THE COURT: Redirect. MR. MANDEL: No, Your Honor. THE COURT: Thank you, Mr. Dealing, you may step down. Call your next witness. MR. MANDEL: United States would call John Munis, Your Honor. JOHN MUNIS, called as a witness, being first duly sworn, testified and said as follows: DIRECT EXAMINATION BY MR. MANDEL: Q. Sir, could you state your name, please? A. John Munis. THE COURT: How do you spell it? A. M-U-N-I-S. THE COURT: Thank you. BY MR. MANDEL: Q. What's your current occupation? A. I am retired. Q. What are you retired from, sir? A. From the Federal Bureau of Investigation. Q. Were you a Special Agent with the bureau? A. Yes, I was. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 63 Q. What years did you serve in that capacity, sir? A. From 1968 to 1996. Q. As part of your duties were you at any time assigned to work out of the Rapid City resident agency? A. Yes, from 1975 until 1978. Q. As part of your duties during that time period, sir, did you become involved in the investigation of the death of an individual later determined to be Anna Mae Pictou-Aquash? A. I did. Q. Can you tell us, sir, how you first became involved in that? A. February 25 of 1976 I was on the reservation. I was at the Bureau of Indian Affairs law enforcement office and was notified that an autopsy was being conducted at the Pine Ridge hospital. I conferred with the resident agency in Rapid City, South Dakota of the FBI, and was instructed to go over to the autopsy and retrieve any items of evidence that may be available. Q. Did you do so then? A. I did. I went to the autopsy momentarily. I met there with a Dr. Brown who was doing the pathology, and also with Nate Merrick, a criminal investigator for the Bureau of Indian Affairs. Q. Can you tell us what took place then at that autopsy? A. I was only in the autopsy a very short time. After JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 64 seeing the condition of the deceased, I left the autopsy, went back and made a call to Rapid City and also to the FBI laboratory in Washington, D.C. conferring with these people concerning the condition of the body, and what the best method would be to obtain fingerprints from the deceased. Q. As you observed it, sir, what was the condition of the body? A. It was in a very decomposed state. Q. Particularly what did you observe regarding the hands, sir? A. The hands were in a shriveled manner so that the fingers were more or less closed. Q. After conferring with the lab, did they give you an indication of what course of action you needed to take to obtain fingerprints? A. They did. They said to request from the pathologist that the hands be removed and submitted to the lab so that they could do an analysis and attempt to get fingerprints. Q. Did the pathologist then remove the hands? A. He did. Q. Did you ultimately end up with custody of those hands? A. I did. I took, custody of the hands went from the pathologist to the criminal investigator, Mr. Merrick, and from Mr. Merrick to me, and I took them back to Rapid City the following day and they were submitted to the FBI laboratory. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 65 Q. What fashion were they submitted, how were they handled, were they treated in any particular way? A. Yes, I was instructed to put each hand in an individual container and add a ten percent formaldehyde solution. Q. How did you obtain that solution, if you recall? A. Pardon? Q. How did you obtain the solution? A. I don't have specific recollection. I believe I got it from one of the hospitals in Rapid City, but I don't recall specifically where I got it. Q. In any case, then you packed the hands in that and transmitted them to the laboratory? A. That is correct. Q. Sir, did you have any other involvement in the investigation of this case? A. No, I did not. MR. MANDEL: Thank you very much. THE COURT: Cross examine. CROSS EXAMINATION BY MR. RENSCH: Q. Who was responsible for the clothing that was on Ms. Pictou-Aquash? A. Who was responsible for the killing? Q. The clothing? A. Oh, for the clothing. The clothing was also removed, and I received the clothing and hair samples at the same time JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 66 I received the hands. Q. What clothing did you take into custody as evidence? A. There was a dress, a pair of moccasins, a bra, a pair of underpants, I believe that was all. MR. RENSCH: Nothing further, thank you. THE COURT: Any redirect? MR. MANDEL: Yes, Your Honor. REDIRECT EXAMINATION BY MR. MANDEL: Q. Agent Munis, I have handed you an FBI report, I am going to ask you if you recognize that document? A. I do. Q. Is that a report that you prepared? A. Yes, it is. Q. Is that the transmittal report that went with the clothing you sent in to the FBI laboratory? A. Yes, it is. Q. Does viewing that refresh your recollection as to what was sent in on that date? A. This does refresh my recollection, yes. Q. Can you tell us what was sent in then, sir? A. A jacket, blouse, blue jeans, pair of shoes, pair of socks, panties, hair, and it doesn't mention the hands. Q. The hands would have been a separate transmittal? A. Yes. MR. MANDEL: No further questions. Your Honor. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 67 RECROSS EXAMINATION BY MR. RENSCH: Q. Agent, I am going to hand you another report from the Federal Bureau of Investigation dated March 1st of 1976 and ask you to look at the paragraph concerning the clothing that was taken from Ms. Pictou-Aquash. Tell us what, if that refreshes your recollection about the clothing that was taken? A. This is a document that you provided to me referred to as an FB302, and this is my notes concerning the items that I obtained at the time that the autopsy was being conducted. And on my notes I listed that there was one pair of hands removed from the body of an unidentified female Indian during the autopsy that was being performed by Dr. Brown. There was clothing that had been removed from the deceased which consisted of one pair of Indian moccasins, bra, panties, overalls, shirt, overcoat and also hair samples. MR. RENSCH: Nothing further. MR. MANDEL: Nothing further. THE COURT: You may step down. Call your next witness. MR. McMAHON: Dr. Garry Peterson. DR. GARRY PETERSON, called as a witness, being first duly sworn, testified and said as follows: JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 68 DIRECT EXAMINATION BY MR. McMAHON: Q. Would you state your name, please? A. Garry, G-A-R-R-Y, Peterson, P-E-T-E-R-S-0-N. Q. Where do you live, Mr. Peterson? A. I live in Minneapolis, Minnesota. Q. Your occupation is what? A. I am a physician, I am a doctor of medicine. Q. Dr. Peterson, do you have a particular specialty? A. I am a pathologist, and within that specialty I practice forensic pathology. Q. Could you just give us a brief description of what forensic pathology is? A. I can. Pathology, the larger field, is one of the medical specialties, and it has basically two subcategories; anatomic pathology and clinical pathology. Anatomic pathology deals with the study of disease, that's really what the word means, from actual anatomic inspection. So it involves areas such as performing autopsies, looking at surgical specimens under a microscope, those sorts of things where there is an actual anatomic either naked eye or microscopic examination for the most part. Clinical pathology is the laboratory area, and clinical pathologists usually head a hospital laboratory and serve as consultant to hospital physicians in ordering and interpretation of tests. Forensic pathology is a special area in pathology. The word forensic comes from the Latin word JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 69 forum, which was the Roman courtroom. And the term is applied because forensic pathologists are often involved in clarifying medical or scientific questions that come up in the courtroom. Most pathologists work in a coroner's office or medical examiner's office and investigate sudden or unexpected death. Q. Would you give the jury a brief review of your medical education? A. I grew up in Minneapolis and went to Minneapolis public schools, and went to college at Hamlin University in St. Paul and University of Minnesota. After college I went to medical school at the University of Minnesota Medical School from 1965 to 1969. Following that I had a year as a rotating intern at St. Paul Ramsey Hospital, now called Regents Hospital, but it is the city-county hospital in St. Paul. Then I took three years of my five year pathology training at that hospital in clinical and anatomic pathology. The fourth year I took a year of forensic pathology at the Hennepin County medical examiners office in Minneapolis. That's the office that covers Minneapolis and the surrounding suburban areas. Then following that I had one more year of clinical and anatomic pathology at Hennepin County Medical Center, that's the city county medical center in Minneapolis. So I finished that training in 1975 and went in to practice in pathology in St. Paul. And for the first four years I was in practice I went to night law school at William Mitchell College of Law in JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 70 St. Paul and finished that in 1979, and after that stopped taking formal college courses. Q. Are you board certified? A. I am board certified in clinical, anatomic, and forensic pathology, all three areas. Q. Do you currently work? A. I am the Hennepin County Medical Examiner, chief medical examiner of the county, and I am finishing what will be my fifth term, my fifth four year term. At the moment I am on leave without pay, but I still am the medical examiner and still administer the office, but in a budget solving movement I forwent my pay. So I am working, but not working full time as I was a few months ago. Q. What is the medical examiner? A. The medical examiner heads the office that is the successor to the coroner's office, Hennepin County once had a coroner's office. The office is charged with two major types of death investigations. Non-natural deaths, the accidents, suicides and homicides that take place in a community. And then the sudden unexpected deaths, or deaths where there is not a doctor in attendance who might be in a position to sign a death certificate. Just by way of example, in Hennepin County we have something in the range of 32 or 33 hundred cases reported to us. So investigating those cases, working with and supervising a team of doctors who work in the office JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 71 and investigative personnel is basically what my career has become. Q. Is one of the things that you do is to conduct autopsies? A. Yes, it is. Q. I am going to refer you back to 1976. Were you contacted to come to South Dakota to observe an autopsy? A. I was, yes. Q. Would you explain how that contact took place? A. There is an attorney in St. Paul by the name of Kenneth Tilsen, and I had been involved in a case with him, I don't remember the specifics of it, and I suppose he knew me from that. But he called at one point and said would you be available to go to South Dakota and basically serve as an observer, there is going to be a second autopsy performed in a very significant or important case, and there would be an interest in having somebody just be there to observe and be able to comment on things. And I thought to myself it would be a very worthwhile thing to do. I was just done with my training and I thought, I didn't know who would be doing the second autopsy, but I assumed it would be someone, maybe someone even I knew, because it is a fairly small specialty nationally, a chance to observe and see how someone else did it, and to keep my eyes open and mouth shut was the way I was approaching it. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 72 Q. Did you end up coming to South Dakota? A. I did. I got a call I think on March 10th of that year from Mr. Tilsen who said can you be on an airplane, it was just a matter of hours I had to get ready. So I got I guess some coverage at the hospital where I was working at the time, and came out here that evening. Q. Did you go to the Pine Ridge hospital? A. I did the following morning, yes, and went down to the hospital there. Q. Instead of observing did you end up conducting the autopsy? A. I did. I kept asking who was going to be arriving to do it, and after a short time I guess you are it, so I was the one who did it. I came expecting to observe, I ended up being the person doing the case. Q. Tell me, that would have been on March 11, is that correct? A. That's right. Q. 1976? A. Yes. Q. What did you find on your initial exam of the body? A. The body was fairly poorly preserved, there was a great deal of powdered preservative that was on the body. The deterioration was fairly substantial, and as I examined the body I asked to have some X-rays taken. In examining the body JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 73 I noticed there was some seepage from the back of the head. Q. What portion of the head? A. Excuse me? Q. What portion of the head was this? A. It was showing in the back of the head, and I felt with my fingers on the side of the head, I felt something firm on the left temple area, and about that time the person I had do the X-rays came in and so X-rays were taken at that point. Q. Were there any X-rays available from the first autopsy? A. No, there were none. Q. What did the X-rays reveal? A. The X-rays revealed a metal projectile in the head area where I felt something. (Exhibit 31 & 32 marked For identification.) BY MR. McMAHON: Q. Dr. Peterson, I have handed you Exhibits 31 and 32. Can you identify those, please? A. These appear to be the X-rays that were taken that day, or reproductions of them, and they do show the projectile. MR. McMAHON: I offer Exhibit 31, Your Honor. MR. RENSCH: No objection. THE COURT: Exhibit 31 is received. MR. McMAHON: And 32. JERRY J. MAY. RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 74 MR. RENSCH: No objection. THE COURT: Exhibits 31 and 32 are received. BY MR. McMAHON: Q. Now Doctor, I have Exhibit 31 on the screen. Can you explain what we are looking at there? A. This is a front view of the head, it shows basically the bones of the skull. On the right side of the X-ray, actually it's turned on its side, but would appear to be the right, actually the left side of the individual, is a bright white area, that is a projectile. It is lead, and as a result it doesn't allow X-ray beams to go through it so the film doesn't get exposed there, that's why it is white as opposed to being dark. Q. I have drawn a circle around it, is that what you are talking about? A. That's the item, yes. Q. Was that a bullet? A. Yes, it was. Q. So that would have been located in the front left? A. Right in the left temple area. Q. Now I have put Exhibit 32? A. And that is a side view. There is some jogging of the top of the skull, that's because it had been opened at the first autopsy. In the left temple area is another view, a side view of that same intense white object which is again the JERRY J. MAY. RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 75 bullet. Q. Is that the bullet? A. That's it right there. You have to look carefully, because there is some white there from the bone, but the bullet is there. It gives I think a good depiction of where the bullet lay. Q. Did you remove the bullet? A. Yes, I did. Q. What did do you with the bullet? A. I gave it to an FBI agent, Mr. Wood. (Exhibit 30 marked For identification.) BY MR. McMAHON: Q. Doctor, I have handed you what has been marked Exhibit 30, can you identify that, please? A. That is a picture of the bullet that has the sequential number I used on my cases at that time, and of the scale that I used. So this is the, a photograph of that projectile. Q. Is that a photograph that you took during the autopsy? A. Yes, it is. MR. McMAHON: Offer Exhibit 30, Your Honor. MR. RENSCH: No objection, Your Honor. THE COURT: Exhibit 30 is received. BY MR. McMAHON: JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 76 to 90 PAGE 76 Q. Doctor, when the X-rays were reviewed, is that the first time that you are aware that there was actually a bullet in the skull? A. Well, I guess so. I felt something there, I didn't know what it was. I waited for the X-rays before I came to the conclusion that it was a bullet, I think. Q. Were there any FBI agents present at that time? A. There were two. Q. Do you remember who they were? A. It was Mr. Wood and I think it was Adams. I could check my. Yes, Mr. Adams. Q. What was their reaction? A. They were astounded, and surprised, and very angry that that was, that it had taken a second autopsy to find that. Q. Had you reviewed Dr. Brown's autopsy? A. It was not available at that time. I didn't see it until later. Q. Have you since reviewed it? A. I have, I have not seen it lately, or reviewed it lately. Q. Did you notice what Dr. Brown had said about the cause of death? A. Yes, I am aware of that. Q. What was that? A. He concluded the death was a result of exposure. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 77 Q. Did you agree with that? A. No, I did not. Q. What was your conclusion as to the cause of death? A. It was my conclusion that the cause of death was a gunshot wound to the head. Q. Did you also in reviewing Dr. Brown's report notice what he said about the kidneys from the body? A. Yes, he had given a weight to describe them. When I examined the body, the kidneys were still in place, had not been removed from the body. Q. To weigh the kidneys you have to remove them? A. Yes. Q. So they had not been weighed? A. They had not been weighed. Q. You talked about the condition of the body. You are aware, of course, that the hands had been severed at the first autopsy? A. Yes, they were actually returned to me. I examined them, and then they were basically rejoined with the body. Q. Is removing the hands in a situation like this, was it a recognized protocol back at that point in time? A. It was. I think it was kind of the minority approach to things, but it was done and I had seen it mentioned as a technique in the teaching I had had at that time. It wasn't a practiced I used, but it was recommended by some authorities JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 78 at that time. Q. You mentioned that you had removed the bullet from the skull, what did you do with the bullet? A. I gave that to Investigator Wood. Q. From your examination of the body, and I recognize that it was quite some time before you actually examined it, but can you give us any opinion as to how far away the gun would have been from the head when the bullet was fired? A. In a general way I can. Q. What is your opinion? A. It was very close. There was black gunshot residue that surrounded the perforation that was in the back of the head. Basically that point on the back of the head and a little bit left of the center line there was gunshot residue. That only travels a short distance from the gun barrel and was very intensely deposited, so I would say the weapon was very, very close, maybe touching the hair just a very short distance. To know the specific distance you would have to test with that weapon and similar ammunition, but we are talking just a very short distance from the skin surface. MR. McMAHON: Thank you, that's all I have, Your Honor. THE COURT: Cross examine. CROSS EXAMINATION BY MR. RENSCH: Q. Morning, Doctor. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 79 A. Good morning. Q. What is livor mortise. A. Livor mortise is the settling of blood that takes place after circulation ceases and gravity will pull the blood to one of the body surfaces, and it will settle and deposit there. Q. You have looked at the bullet that you took out of Ms. Pictou-Aquash's skull, did you not, sir? A. I did look at it, yes. Q. It had copper on it, didn't it? A. It had a copper coloring, they call a flash. Wasn't really a jacket around, but had some copper coloration to it. Q. In the course of the autopsy you also examined the vagina of Ms. Pictou-Aquash to take a look at it, did you not, sir? A. I did look at the genitalia, yes. Q. You noted the genitalia appeared normal? A. They did to me, yes. Q. You didn't find any other bullet holes or bullet wounds on this body, did you, sir? A. No, that was the only one. MR. RENSCH: Nothing further, thank you. THE COURT: Redirect. MR. McMAHON: No further questions. THE COURT: Thank you. Doctor, you may step down. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 80 Call your next witness. MR. MANDEL: The United States would call William Wood. WILLIAM WOOD, called as a witness, being first duly sworn, testified and said as follows: DIRECT EXAMINATION BY MR. MANDEL: Q. Sir, would you state your name, please? A. William B. Wood. Q. What is your current occupation? A. I am retired. Q. And what are you retired from, sir? A. Federal Bureau of Investigation. Q. Were you a Special Agent with the FBI? A. Yes, sir, I was. Q. How long were you employed in that capacity? A. Thirty-one years. Q. What years was that, sir? A. From 1966 to 1997. Q. Sir, did you spend some of those years operating out of, in Rapid City, South Dakota? A. Yes, sir, I did. Q. Can you tell me what years you were in Rapid City? JERRY J. MAY. RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 81 A. From 1975 to 1992. Q. As part of your duties did you investigate federal crimes occurring on the Pine Ridge Indian Reservation? A. Yes, sir. Q. Did you become involved in the investigation of the death of Anna Mae Pictou-Aquash? A. Yes, sir, I did. Q. Can you tell me when you first became involved in that, sir, if you recall? A. In, it was in February of 1976. Q. How did you become involved? A. I was assigned the case, and the original case agent was Agent Dealing, and I was assigned the case after him, and was assigned to conduct the investigation concerning her death. Q. At the time you originally were assigned to the case, had there been an identification made? A. Not at that time, no. Q. Can you tell us then the sequence of events as to what happened in terms of how the identification was made? A. The identification was made from the hands that, of the victim after they had been removed at the first autopsy by Dr. Brown. And turned over to Agent Munis, and the identification division, through fingerprints obtained, that the identification division identified the remains as those of Anna Mae Pictou-Aquash. And when we found that identity out, JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 82 then I was assigned to get a Court Order for the exhumation of the body. Q. Why was that, sir? A. Because the, for one thing, I did not believe that, the original cause of death being given as exposure, I didn't believe that that would be the truth, and I wanted to have the body re-examined, and applied for the Court Order and was granted that by Judge Bogue, and the body was exhumed, and the second autopsy was performed. Q. Now had you had previous experience with Dr. Brown as a pathologist? A. Not personally, no. I know that he had been conducting autopsies for cases on the Pine Ridge Indian Reservation for a number of years, and I was not personally acquainted with the man. Q. After the exhumation order was received from Judge Bogue, what steps took place next? A. I went down to the reservation with two other agents, and on March the 11th of 1976, and the BIA was using a backhoe to dig for remains that they had been buried at a cemetery across from Holy Rosary Mission. Q. Can I ask you if you know, sir, why were the remains buried before the body was identified, or that all effort had been exhausted? A. That I do not know. We requested that the body not be JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 83 interred, but it was. Q. What took place at Holy Rosary then, sir? A. At the exhumation, after the body was exhumed it was placed on a flat bed truck of the Bureau of Indian Affairs and taken to the Pine Ridge hospital and then taken into the morgue, and Dr. Peterson was present, and myself and Special Agent Gary Adams were present during the autopsy. Q. How was it that Dr. Peterson was selected as the individual to perform the autopsy? A. To the best of my recollection I believe that we had been contacted by Bruce Ellison, and he had wanted to have an independent pathologist examine the body. And I don't recall if we had selected or if Mr. Ellison and his office had selected Dr. Peterson, but Dr. Peterson was acceptable to us, because I knew that he was the medical examiner in Hennepin County, and has a good reputation as a good and thorough pathologist. Q. What took place then when the second autopsy was conducted, sir? A. The first thing that was done was Dr. Peterson had X-rays taken, and I was not in the room when the X-rays were taken, of course, but after the X-rays were taken and the film was developed, then he determined that there was a piece of metal in her head around the left eye socket. Q. Was he able to extract that piece of metal? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 84 A. Yes, he was. Q. Did he provide it to you? A. Yes, sir, provided it to me, and I gave him a receipt for it. Q. Were you able to visually identify that item? A. Yes, sir. Q. Could you generally tell what it was looking at it? A. Yes, sir. (Exhibit 33 marked For identification.) BY MR. MANDEL: Q. Sir, I have provided you with what has been marked Exhibit 33, I will ask you if you can identify that item? A. Yes, sir, that appears to be the piece of metal that was taken out of the head of Anna Mae Pictou-Aquash, her remains. Q. Sir, what did you do with that item? A. After giving him a receipt, then I placed it in this box. Q. Did you place your initials on the box? A. Yes, sir, I did. Q. Are they still there? A. Yes, sir, they are. Q. Other than that Exhibit sticker that I put inside the box that shows Exhibit 33, does that appear to be in pretty JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 85 much the same condition as when you did it? A. Yes, sir, it does. Q. After obtaining that bullet, what action did you take next? A. I had taken the hands with me down to the autopsy, and the hands were turned over to Dr. Peterson for inclusion back with the body at the conclusion of the autopsy, and I also, the body was turned over to Bruce Ellison, and then I gave Mr. Ellison a receipt, or he gave me a receipt for that. MR. MANDEL: Your Honor, I offer Exhibit 33 at this time. MR. RENSCH: No objection. THE COURT: Exhibit 33 is received. BY MR. MANDEL: Q. Was the body re-interred after that to your knowledge? A. Yes, sir, it was. Q. Where was that, if you know? A. I do not know. Q. In terms of the investigation of this case, can you tell us what actions you took initially at that time to pursue the investigation? A. Well, just we contacted as many people as we could find that, attempting to interview various people that we knew that Ms. Aquash had associated with. And many of those people were not interested in speaking with us, and we just kept running JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 86 in to many, many different blind alleys, if you will, where we couldn't get very many people to talk to us. And we could not, we had a very difficult time tracing her activities from the last time that she had been known to be alive by us. Q. Was this kind of running in to a brick wall a common problem in investigations down on Pine Ridge back at that time? MR. RENSCH: That's a leading question, Your Honor. THE COURT: Sustained. BY MR. MANDEL: Q. Was it unusual to have difficulty getting cooperation in an investigation down there? A. It was very common at that time, specially in connection with a matter such as this where she had ties to the American Indian Movement, and also to the Wounded Knee Legal Defense-Offense Committee. Q. Sir, did you conduct a further investigation at the crime scene at any point? A. Yes, sir, I did. Q. Were you out there initially when the body was found? A. No, I was not. Q. But were you, how were you able first of all to determine that you were at the correct scene when you went back to look at it? A. Well, for one thing I think probably Nate Merrick may JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 87 have pointed it out to me, and some, probably Agent Dealing may have pointed it out to me. I don't remember exactly who had shown us exactly where it was, but it would have been some of the law enforcement personnel that were involved in the initial crime scene. Q. Can you tell us what further efforts you made at the crime scene itself, sir? A. Myself and three other agents went out with, and did a re-examination of the crime scene. That was on March the 15th, four days after the second autopsy. And at that time once we had found that she had been shot, then we took a metal detector with us and examined the crime scene up on top of the ravine and then down below where her body had been found. Examined the entire area with the metal detector, and also visually looking for other items of evidence. Q. With the use of the metal detector were you able to locate either any expended cartridges or any other bullets that had been fired? A. We found nothing, no form of metal at all anywhere in the area. Q. Based on the investigation did you have any conclusion as to where the shooting had taken place? A. Would you repeat that again, sir? Q. I guess what I am asking is did you believe the shooting had taken place where the body was found ultimately, or at JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 88 some other location? A. It was our theory she had probably been shot above and pushed over the edge of the ravine. Q. But I guess at that point that was just a theory? A. Yes, sir, it was, because there was no way for us to tell, because the body was very badly decomposed when found, and mummification had set in. And the length of time that it takes for that to occur, we wouldn't, I mean many times drag marks or any blood stains or anything that would have been in the area would have been gone due to weathering. Q. Did you take other actions after that in this investigation, sir? A. Just the normal investigative routines. Q. During the course of the time you were assigned to the case did you ever get it to the point where there was enough evidence to bring charges against any individual? A. No, sir. MR. MANDEL: I have no further questions. Your Honor. THE COURT: You may cross examine. MR. RENSCH: Thank you. Your Honor. CROSS EXAMINATION BY MR. RENSCH: Q. What day did you folks take out the metal detector to where this body was found and examine the area? A. It was March the 15th. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 89 Q. How long did it take for you to examine the area with the metal detector? A. I don't recall the exact amount of time that we were out there. Q. Roughly? A. I am guessing we probably spent three or four hours out there at least. Q. Who were you with? A. I was with Special Agent John McCarty, George Haffner and Edman Bean. Q. Who was operating the metal detector? A. I do not recall who operated that, it was not me. Q. What area was searched? A. The area immediately above where the body was found, and probably as best I can recall we probably would have gone 25 to 50 feet out, and all the way back to the road. And then the area down where her body was found and the adjacent area to that going up. I don't recall how far. Q. So you searched the area immediately around her body to see if you could find any metal, is that right? A. Yes, sir, and extending out a ways, yes, sir. Q. Do you have any notes or reports concerning how far out you went? A. I have a, just my report notes. Not that says how far we went out, no. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 90 Q. Who is Bruce Ellison? A. Bruce Ellison is an attorney that was representing the Wounded Knee legal Defense-Offense Committee. Q. When he was talking to your office about getting Ms. Pictou-Aquash's body exhumed, did he make any representations about being a lawyer for the family? A. At some point he did make mention that he was. When I gave him the remains, he said that he represented the family at that time. Q. Isn't it true, sir, that he initiated efforts to get this body exhumed? A. No, sir, it is not. Q. When did you initiate efforts to get the body exhumed? A. I don't recall the exact date. It was when we found out, when we received information from the identification division, from that moment on is when we started our efforts to get the Court Order. Q. Your duties as a Special Agent in 1975 in this area included what, sir? A. Just investigating crimes on an Indian Reservation, on Pine Ridge Indian Reservation specifically. Q. Did you also include among your duties the cultivation of informants within the American Indian Movement? A. Within my duties as a Special Agent of the FBI, as with any law enforcement agency, is to gather information in any JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 91 to 105 PAGE 91 way you can, and development of informants is one tool that is utilized by law enforcement, yes, sir. Q. Now in December of 1975 there were informants within the American Indian Movement, were there not, sir? A. I don't personally know that, no. Q. You didn't receive any information in December of 1975 from any informant of the FBI about the circumstances surrounding Ms. Aquash's death, did you? A. No, sir, I did not. Q. Did you personally handle any informants in December of 1975? A. Yes, sir, I think I probably had some informants at that time. Q. Did any of your informants include an individual by the name of David Hill? A. No, sir, that name is not -- no. Q. Are there different levels of labels given to people who give information to the FBI? A. Different levels? Q. Of labels, is there a difference say between an informant and a cooperating witness? A. Yes, sir. Q. Is there a term given to a person who might provide a small tip about something to the FBI? A. Yes. JERRY J. MAY. RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 92 Q. What is that, what term is it? A. Well, it could be considered an informant. Q. What is an operative? A. I don't know how you are using the term, sir. Q. Well, I want to talk about how the FBI would have used the term in 1975? A. That term was not a commonly used term at that era as far as I recall. Q. In December of 1975 were you personally in contact with or receiving information from any known operative of the FBI within the American Indian Movement? A. No, sir. Q. Do you know what COINTELPRO is, sir? A. I have heard the term. Q. Did you receive any special training while were you a Special Agent with the FBI? A. Special training in what? Q. COINTELPRO? A. No, sir. Q. Did you ever take active efforts to snitch jacket a person? A. To do what? Q. Snitch jacket a person? A. I don't know how you are using that term, sir. Q. Did you ever take active efforts to start rumors that JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 93 people who were not informants were informants? A. Absolutely not, no. Q. Were you ever trained in any way to have informants or operatives say that people who weren't really informants were informants to create dissension within the American Indian Movement? A. As far as I know that wasn't a technique that was used. Q. Did you ever do that? A. No, sir. Q. Now you knew that Ms. Aquash was approached by the FBI and they wanted her to be an informant, did you not know that, sir? A. No, sir, I did not. Q. You were not involved in that at all? A. No, sir, I was not. Q. Did you have a partner in the FBI? A. We would partner up from time-to-time. We would ride with various individuals, but to have an assigned partner at that time, no. Q. Was David Price a person you would ride with from time-to-time? A. Yes, sir. Q. He is also an FBI agent? A. Yes, sir. Q. Were you ever present when he attempted to have JERRY J. MAY. RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 94 Ms. Aquash become an informant? A. No, sir, I was not. Q. Were you ever instructed by him to try to recruit Ms. Pictou-Aquash to be an informant? A. No, sir, I was not. Q. Did you ever take part in steps to damage the reputation of people who refused to become informants? A. No, sir. I mean that wasn't a part of what we did. Q. So back in 1975, as far as you know, there was no effort by the Federal Bureau of Investigation to plant rumors and create dissension within the American Indian Movement, is that your testimony? A. I never did that, and I don't know of anyone else that was doing that. Q. Were you ever a party to that being done to the Black Panthers? MR. MANDEL: Objection, relevance. THE COURT: Sustained. BY MR. RENSCH: Q. What was it you were looking for with the metal detector, sir? A. Any metal, any other bullets or shell casings, just a routine. Q. Why would it be important to find bullets if they were in the ground near a person's body? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 95 A. Well, it could indicate a struggle, or it could indicate a number of different things, but we wouldn't know that until we had solved the case. I mean it is just an investigative tool to find anything that might, specially in a situation like that where it had been some time since the incident had occurred, at least a month or two, and not knowing exactly how long it had happened. It would also be to find any other pieces of evidence. There could be bracelets, or jewelry, or something like that. There could be all kinds of things, metal things out there that could be beneficial to the solving of the case. Q. Other than the body, and what was inside the body, and some hair strands that were found on the embankment, did you find any other physical evidence whatsoever which told you what happened at the scene when this poor woman was killed? A. No, sir. MR. RENSCH: Thank you, sir, nothing further. THE COURT: Redirect? MR. MANDEL: No further questions, Your Honor. THE COURT: Thank you Mr. Wood, you may step down. Call your next witness. MR. MANDEL: United States would call Evan Hodge, Your Honor. EVAN HODGE, JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 96 called as a witness, being first duly sworn, testified and said as follows: DIRECT EXAMINATION BY MR. MANDEL: Q. Sir, could you state your name, please? A. My name is Evan Hodge, E-V-A-N, H-O-D-G-E. Q. What is your current occupation, sir? A. I am retired. Q. Can you tell us what your previous work background is? A. I retired earlier this, earlier last year from the Vermont State Police Forensic Laboratory where I worked for approximately fourteen years after my retirement from the FBI laboratory in 1988. Q. How long were you with the FBI laboratory, sir? A. Approximately 26 years. Q. Can you tell us what your duties were there at the FBI laboratory? A. I retired as the chief of the firearms and tool mark identification unit. I was prior to that a firearm and tool mark examiner. Q. That would have been for the entire time you were there at the lab? A. Well, from 1970. I spent a short period of time in the field in 1969 and 1968. Prior to that I was a technician in the FBI laboratory prior to becoming an FBI agent. I returned JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 97 to the laboratory in late 1969. Stayed there until 1988 when I retired. Q. Was one of your duties to perform ballistic examinations, sir? A. Yes, sir. Q. Can you tell us, did you have specialized training in order to be able to do that? A. Yes, I did. Q. What was that? A. Well, as I said a moment ago, I did have approximately five years in the firearms and tool marks unit as a support technician, which pretty well taught me the expertise of firearms and tool marks identification. When I returned as an agent I went through the formal aspect of training which would include reading whatever literature that I didn't read, and going through a series of moot courts, and visiting various firearms manufacturing facilities to see exactly how guns were made. Q. Was there also educational background regarding this, sir? A. Well, I did, I have a Bachelors Degree and my undergraduate studies were engineering and business administration. I also have a Masters Degree in forensic science, but I earned that degree after I returned to the laboratory. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 98 Q. Sir, can you tell us generally what types of things you are able to determine through ballistic examination? A. Well, if we are talking about strictly a bullet, you look at the bullet, you can determine its caliber, you can perhaps determine who made the bullet. You can determine the type of rifling in the gun barrel from which it was fired, and if the rifling impressions in that bullet are sufficiently detailed, you can identify it with the gun from which it was fired if you have that gun. Q. So did you conduct an investigation as to some ballistic evidence in a case that involved the death of Anna Mae Pictou-Aquash? A. Yes, sir, I did. Q. Sir, I have handed you what's been marked Exhibit No. 33. I will ask you if you recognize that item? A. Yes, sir, I do. Q. Can you tell us what that is? A. This is a lead bullet which I designated as Q 11. It was received by me from Rapid City, South Dakota in March of 1976. Q. Did you conduct an examination of that item? A. I did. Q. Can you tell us what you were able to determine from that examination, sir? A. Very little. Only that it is a 32 caliber lead bullet JERRY J. MAY, RPR, CM 400 South Phillips Avenue, tt305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 99 of the type used in revolvers, and that is basically it. There are no remaining rifling impressions so I could determine the type of rifling in the gun barrel from which it was fired. And that's basically all I could tell was that it was a 32 caliber lead bullet. Q. Were you able to tell anything as to the probable manufacturer of the bullet? A. It looks to me it is most likely of Winchester manufacture. Q. Is it unusual to have that little identifying material or markings on a bullet? A. Not at all. Q. Why not? A. Well, it is soft lead, so that anything that comes, it comes in contact with it will distort the bullet. The other very good reason for not having those marks is the condition of the gun barrel. If the gun barrel was badly rusted, then the bullet may never actually get involved with the lands and grooves in the gun barrel. Or if the barrel was heavily leaded, that could also preclude any markings from the barrel being put on the bullet itself. Q. So beyond the probable manufacturer and the fact that it was 32 caliber, and probably from a handgun, is there anything else you are able to determine, sir? A. No, sir. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 100 Q. And you had no weapon to do any kind of comparison on, correct? A. No, I didn't. Q. If you had a weapon available, would it have been possible to do a comparison based on the condition of this bullet? A. No, it would not. MR. MANDEL: I have no further questions, Your Honor. THE COURT: Cross examine. CROSS EXAMINATION BY MR. RENSCH: Q. The bullet was copper coated, is that right? A. Yes. It is one of the reasons why I would think it is a Winchester. There was copper coating on it. Q. Would a bullet of that type be accurate for thirty feet? A. At thirty feet? Q. Urn-hum? A. That's problematical, I don't know. MR. RENSCH: Thank you. THE COURT: I have a question. Sir, you mentioned revolver, with that were you being specific as to revolver or within that did you mean to include pistol also. THE WITNESS: Normally, Your Honor, I am only going by probabilities here, normally this type of bullet is found in revolver cartridges, which is why I would say revolver. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 101 THE COURT: Thank you, the Court's question give rise to questions by either side? MR. MANDEL: No, Your Honor. MR. RENSCH: No, Your Honor. THE COURT: Thank you, you may step down. Call your next witness. MR. MANDEL: United States would call Kimberly Edwards, Your Honor. KIMBERLY EDWARDS, called as a witness, being first duly sworn, testified and said as follows: DIRECT EXAMINATION BY MR. MANDEL: Q. Would you state your name, please? A. My name is Kimberly Edwards. Q. Where are you employed? A. I am employed by the latent fingerprint unit of the FBI. Q. Where is that located? A. In Quantico, Virginia. Q. Do you have a specific title there? A. My title is physical scientist forensic examiner. Q. And do you specifically do fingerprint work among other things? A. That's correct. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #30 5A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 102 Q. How long have you been employed doing fingerprint work? A. Just about four years. Q. Can you tell us what your duties are in that regard? A. I receive and inventory evidence, process the evidence for presence and development of latent prints. I can then compare those prints to the known prints of individuals. Additionally I work with the hands and fingers of unknown deceased in an attempt to effect their identification. Q. How long have you been employed -- excuse me. Give us your educational background, please? A. I received an undergraduate degree in mathematics and biology from the University of Virginia, Masters Degree from University of Maryland at College Park in biological resources and engineering. Q. Did you also receive specific training regarding fingerprints? 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #30 5A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 103 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 104 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 105 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 106 to 115 PAGE 106 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 107 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 108 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 109 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 110 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 111 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 112 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 113 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #30 5A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 114 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, tt305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 115 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 117 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 118 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 119 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 120 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 121 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 122 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 123 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 124 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 125 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 126 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 127 (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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 128 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 129 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 130 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. JERRY J. MAY. RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 132 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 133 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 134 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 135 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: JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 136 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 137 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 138 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? JERRY J. MAY, RPR. CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 139 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 140 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 141 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 142 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 143 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: JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 144 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 145 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 146 to 160 PAGE 146 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 147 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 148 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? JERRY J. MAY, RPR. CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 149 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 150 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 151 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 152 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 153 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 154 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, JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 155 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, tt305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 156 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 157 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 158 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). JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 159 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 160 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 161 to 175 PAGE 161 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 162 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. JERRY J. MAY, RPR, CM 400 South Phil lips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 163 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. JERRY J. MAY. RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 164 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 165 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 166 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 167 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? JERRY J. MAY. RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 168 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 169 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, JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 170 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, tt305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 171 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 172 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 173 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 174 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 175 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 JERRY J. MAY, RPR. CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 177 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 178 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 JERRY J. MAY, RPR, CM 400 South Phil lips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 179 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 180 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 181 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 182 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 183 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, tt305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 184 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 185 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 186 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. JERRY J. MAY, RPR. CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 188 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. JERRY J. MAY, RPR. CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 189 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 192 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 196 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 197 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 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: JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 203 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 210 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 211 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 212 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 213 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 JERRY J. MAY. RPR, CM 400 South Phillips Avenue, tt305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 214 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 215 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 216 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 217 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 218 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 219 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 220 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. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 222 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 223 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 224 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 225 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 226 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 227 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 228 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 229 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. JERRY J. MAY. RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 230 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 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 231 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 232 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 233 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? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 234 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. Q. Why not? A. I have no reason to do that. Q. Did you believe there was any reason to do that to Anna Mae Aquash? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 235 A. No. Q. Is the reason that you didn't call the police because you didn't think that something was going to happen, or because you were simply afraid? A. I didn't think anything was going to happen. Q. In spite of what you saw? A. Yes. MR. MANDEL: Nothing further. Your Honor. MR. RENSCH: Nothing further, thank you. THE COURT: Thank you, you may step down. Call your next witness. MR. McMAHON: Troy Lynn Yellow Wood. TROY LYNN YELLOW WOOD, 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. Troy Lynn Yellow Wood. Q. Where do you live? A. Denver, Colorado. Q. How long have you lived there? A. More than thirty years. Q. What was the address that you lived in in November and JERRY J. MAY, RPR, CM 40Q South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 236 to 250 PAGE 236 December, 1975? A. 4494 Pecos Number 1. Q. What type of a residence was that? A. It was a triplex with three apartments all in one unit. Q. And you had one of the units? A. I had the first unit. Q. How big was it? A. It was a three bedroom house with a bathroom, a kitchen, dining room, living room. Q. How many bedrooms? A. Three. Q. On what level? A. They were all on the, on the upper floor level. Q. Was there an upstairs? A. No. Q. Was there a basement? A. Yes. Q. How big was the basement? A. It was as big as the entire upper floor. Q. So it was all one room down there? A. Yes. (Exhibit 12 marked For identification.) BY MR. McMAHON: JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 237 Q. I have laid Exhibit 12 in front of you, can you tell me what that is a picture of? A. A picture looks like at 4494 Pecos. Q. Where you lived? A. Yes. MR. McMAHON: Offer Exhibit 12. MR. RENSCH: No objection. THE COURT: Exhibit 12 is received. BY MR. McMAHON: Q. Do you know Mr. Arlo Looking Cloud? A. Yes, I do. Q. How long have you known him? A. For more than thirty years. Q. Is he present in the courtroom? A. Yes, he is. Q. What is he wearing? A. A checkered erred shirt. Q. Would you point him out? A. He is sitting right there. MR. McMAHON: May the record reflect she pointed to the defendant. Your Honor? THE COURT: It may. BY MR. McMAHON: Q. How old are you? A. I am 54 years old. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 238 Q. How old is Mr. Looking Cloud? A. I think 50, but I am not sure. Forty-nine maybe, I don' t know. Q. So you are close to the same age? A. Yes. Q. Did you grow up together? A. No. I never knew Arlo until he was in his late teens, middle teens maybe. Q. You were living in Denver at the time? A. Yes. Q. Was he living in Denver at the time? A. He lived in Aurora. Q. And the two of you became very close? A. We have been friends for a long time. Q. And you described that friendship as very close? A. Yes. Q. And you described it was he was one of your best friends? A. Yes, he was like my brother. Q. Did he stay at your house? A. He never lived at my house, but he has always been welcome in my home, and he comes and goes when ever he feels like it. Q. Did other members of AIM come and go and stay at your house in Denver? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 239 A. Yes. Q. Was it used as a safe house, for lack of a better word? A. It was just a home that people were welcome in. I don't know that it was a safe house. But it was a home that many people came to and passed through. Q. Were you a member of AIM? A. I was, and I am. Q. Approximately what year did you start attending AIM events? A. I think in 1970, maybe late '69. I am not sure. I think '69-70. Q. Was there a AIM chapter in Denver? A. Yes, there was. Q. So I am assuming you attended events in Denver? A. Yes. Q. And other places? A. Yes. Q. Did you and Mr. Looking Cloud attend events together? A. I think so. Q. Did you travel together? A. Yes. Q. And those would have been to AIM events, I suppose some of them in South Dakota? A. Yes. Q. And other places around the country? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, tt305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 240 A. I am not sure. Maybe Albuquerque, I am not sure. Q. Would the two of you ride together? A. Yes. Q. Would other people go with you? A. Yes. Q. Did you ever know Anna Mae Aquash? A. Yes. Q. How did you get to know her? A. I saw her at many of the different gatherings that we all attended through the years, you know, during the time that I knew her. It was mostly in passing. Q. So you would see her at the various AIM events also? A. Um-hum. Q. And did you know John Boy Graham? A. Yes, I did. Q. He was also known as John Boy Patton I believe, correct? A. Yes. Q. How long did you know him? A. Not very long. During the time that he lived with Angie Begay I knew him. Q. And they lived in Denver? A. Yes. Q. Did you ever travel to any AIM events with them? A. To the sundance. I don't know about, I don't remember about AIM events, but I traveled with them to the sundance at JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 241 Green Grass, South Dakota. Q. And did .Arlo Looking Cloud ride with you? A. No. Q. Was he at that sundance? A. No. Q. Did you have an occasion to see Anna Mae Aquash in November of 1975? A. Yes. Q. Where did you see her? A. My Aunt Theda brought her to my home. Q. When you talked about your Aunt Theda, who are you talking about? A. Theda Clark is my mother's sister. Q. So she is literally your aunt? A. Yes. Q. Approximately what time in November was that, that she brought her to your home? A. I don't know the exact date, but it was late November. It was before the week of Thanksgiving. I don't know the dates. Q. When she brought Anna Mae to your home was anyone with them? A. Her husband. Q. Theda Clark's husband? A. She was married to Julian Pokrywka. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 242 Q. Was anyone else with them? A. Possibly her children, I don't remember. Q. Why was Anna Mae being brought to your house? A. She said, Aunt Theda said for safe keeping, I guess. I don't know, just because she needed a place to stay that was safe, and so she brought her there, I don't know. Other than that, I don't know. Q. Did she tell you anything other than to just let her stay with you? A. She asked me to watch out for her and not to let anything happen to her. Q. Who was living with you at the time? A. Just me and my children. Q. When Anna Mae was brought to your house by Theda Clark, did she have any suitcases with her? A. She had nothing. Q. No personal belongings of any kind? A. No. Q. Nothing other than the clothes she was wearing? A. I think she had like a small, like maybe a paper bag or something like that with, I don't know really, not anything of. Q. Where had she come from, do you know? A. She told me she came from Pierre, South Dakota. Q. Pierre, South Dakota? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 243 A. Um-hum. Q. Did she discuss with you the fact that she had jumped bond? A. Yes. Q. So you knew she was on the run? A. Yes. Q. How long did Anna Mae stay with you? A. I don't know the exact extent or length of the time. Possibly two weeks, ten days, I don't really know. Q. Was it December when she left? A. It was early December, yes. Q. Did the two of you have a chance to visit while she was staying with you? A. Yes. Q. What was her state of mind? A. She was nervous, she was paranoid, she was, I don't know, she was sad. Q. When you say she was paranoid, what do you mean? A. She felt that -- well, she told me that people were accusing her of giving other people up, and that they were blaming her for all these different busts, or whatever you want to call them. That's what we called them, and she felt bad that people thought that she was a snitch. Q. Did she tell you she was not a snitch? A. I don't know that she ever really actually said that she JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 244 wasn't, but it was understood. I mean I understood that, and she didn't have to tell me that she wasn't, I never believed that she was. Q. Was she scared? A. Yes. I don't know that she -- like when anybody came, she would go to the bathroom and just close the door. She didn't want to see anybody. Q. Did you have any discussions with her about any relationships she had with other men? A. Yes. Q. And who was that? A. Dennis Banks. Q. Did you know that relationship was going on while it was going on? A. No. Q. Not until she told you? A. Not until she told me. Q. Did she ever mention to you any individuals that were accusing her of being an informant? A. Not specifically. Q. Did she ever mention any instances where she might have been confronted by anyone? A. She mentioned one incident regarding Peltier, but other than that I don't really remember anybody else. Q. Did she mention where that happened? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 245 A. I think she said in Mexico, but I don't remember the exact place. Q. Did she tell you what happened? A. She said that there was some -- MR. RENSCH: Objection, hearsay. THE COURT: Sustained. MR. McMAHON: Goes to state of mind, Your Honor. THE COURT: I will allow it in part with a limiting instruction again, which I have given you with regard to this same kind of testimony before. It is not for the truth of the matter stated, but rather it is with regard to the state of mind of Ms. Aquash and what she would have manifested. You may answer. BY MR. McMAHON: Q. I think the question was what did she tell you about that confrontation? A. She said that people were distancing themselves from her, or were mistrustful of her, or I don't know. They weren't treating her the same as they had before. Q. You mentioned a particular incidence that she told you about and mentioned Mr. Peltier, that's what I am asking you about? A. She said that Leonard had held a gun to her head and had asked her, and told her that everybody was saying she was a snitch, and asked her. I think she said something like he JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 246 wanted to hear it from the horse's mouth. She said that she just, she cried. She told him, you know, if you believe that about me, then I give you permission to pull the trigger. But don't threaten me, don't do this to me if. If you think that about me, then just get it over with, but either kill me or defend me. Q. Did there come a time while Anna Mae was staying at your home that there was a gathering of people to discuss her? A. There was a gathering of people. I didn't know that they were there to discuss her, but a lot of people came to my home and they, Aunt Theda was there, and they had a meeting in my living room. Q. Did you hear what the meeting was about? A. No. Q. You have no idea what it was about? A. No. Q. You never went in the room at all? A. I went in to give them coffee. I took a tray of coffee and sugar and cream and set it on the coffee table. Q. And you didn't hear any discussions while you were in there? A. No. I kind of think that things kind of quieted down when I came in, they were kind of murmuring and talking amongst themselves, and the only thing that I -- MR. RENSCH: She is narrating, Your Honor, JERRY J. MAY. RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 247 objection. THE COURT: No, overruled. BY MR. McMAHON: Q. Go ahead. A. The only thing that I remember is that I looked up and I saw Ernesto Vijil. MR. RENSCH: Object on the same hearsay grounds I objected before. THE COURT: Sustained. BY MR. McMAHON: Q. Did you discover the meeting was about whether or not she was an informant? A. No, I don't know what the meeting was about. I never knew what that meeting was about. Q. How long did the meeting last? A. Not very long. I don't know, less than a half an hour, maybe fifteen, twenty minutes, I don't know. I don't remember. Q. You said Theda Clark was there? A. Yes. Q. Who else was there? A. Ernesto Vijil. Q. Who is that? A. He was Corky Gonzalez's right-hand man, and Corky Gonzalez from the Crusade for Justice was there as well. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 248 Q. And who else? A. I am not sure. Q. You don't remember who was having this meeting in your home? A. No, there was, there were many people, I don't know who they all were, those are the people that I can remember. Q. You remember three out of the many people? A. Um-hum. Q. And you served coffee to them? A. Um-hum. Q. You can't remember anyone else? A. I didn't even remember that meeting until I went before the grand jury and I was questioned about it, I had forgotten about that totally. Q. You forgot about the meeting? A. Um-hum. Q. Isn't this the meeting where Anna Mae was taken from your home? A. Yes. Q. And you forgot about that? A. Yes. Q. Okay. Was Mr. Looking Cloud there? A. I think he was. Q. You have talked to him about this incident, haven't you? A. Talked with him about it? Not really. JERRY J. MAY. RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 249 Q. Pardon me? A. Not really. Q. You haven't ever talked with Mr. Looking Cloud about what happened? A. No. Q. Did you ever have a meeting with Mr. Looking Cloud and Kamook Nichols? A. Yes. Q. And didn't you talk about this then? A. Kamook asked questions, and a little bit of discussion around it. Q. Well, you were in on that conversation, weren't you? A. Yes. Q. Didn't you go meet with Mr. Looking Cloud, you and he and John Trudell have a meeting? A. Yes. Q. And wasn't it discussed then? A. Yes, but I wasn't a part of the discussion. I was only, I mean I was there, but what took place was between Arlo and Trudell. Q. You heard what was being said? A. Yes. Q. So you said that you believe Mr. Looking Cloud was there, is that where we left off? A. Yes. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 250 Q. How about John Graham? A. Yes, he was there. Q. And Anna Mae was there? A. Yes, she was in the back bedroom. Q. Was Mr. Looking Cloud in the back bedroom with her? A. No. Q. He wasn't? A. No. Q. Where was he? A. I don't know, I don't even know when Arlo came. I don't remember that. I don't even know that I saw him there. I know that he was there, I don't really know how I know he was there, but I don't remember seeing him. I know I didn't talk to him. I don't know if I saw him when they were leaving, I don't really remember. Q. So you remember seeing him some point in time, and you just don't remember when it was? A. No. Q. No, you don't remember? A. No. Q. In fact, Mr. Looking Cloud has previously told you that he wasn't even in your house, hasn't he? A. I think so. Q. Well, did he? A. Yes. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #30 5A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 251 to 265 PAGE 251 Q. Wasn't in your house at all? A. I don't know, I didn't see him. I can't say whether he was or he wasn't, I did not see him. Q. But he told you he wasn't in your house, didn't he? A. Yes. Q. Where were you during the meeting? A. Part of the time I was in the kitchen, part of the time I went back to the back where Anna Mae was, and another little by way in to my bedroom. Q. When you went back to where Anna Mae was, did you visit with her? A. Yes. Q. What did she say to you? MR. RENSCH: Objection, hearsay, Your Honor. THE COURT: How about did he say anything to you? Sustained. MR. McMAHON: I like that. BY MR. McMAHON: Q. Did she say anything to you? A. Yes. I don't remember the exact conversation, but she was nervous about. I mean she was nervous about the fact that there were a bunch of people there, and from the bedroom she was in, it was directly in front of the parking lot, and so anybody that came in to the house you could see who was coming and going. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 252 Q. What was she doing when you went into the back bedroom? A. She was sitting on the bed and she was distraught, I guess is the word. She was not in a good place. Q. Was she huddled up? A. I think she had her head down. I don't remember, but I know that she was, I think she had her head down, possibly on her knees, I don't remember exactly. Q. Was she frightened? A. Yes. MR. McMAHON: May I approach the witness, Your Honor? THE COURT: You may. MR. RENSCH: What page are you at, counsel? MR. McMAHON: 47. BY MR. McMAHON: Q. Have you had a chance to review a portion of your previous grand jury testimony? A. Yes. Q. Does that refresh your recollection as to what she said to you? A. Yes. Q. What did she say to you? MR. RENSCH: Objection, hearsay. THE COURT: Sustained in part. Once again, this isn't offered for the truth of the matter stated, but rather JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 253 is to show Anna Mae Aquash's state of mind and what she may have felt. BY MR. McMAHON: Q. Go ahead, you can say what she said to you. A. She said that if this occurred, if they took her back to South Dakota, that I would never see her again. That no one would ever see her again. Q. What happened when the meeting was over? A. Everybody just left, they just got up and all left. Q. Did you -- did anybody say anything about where they were going? A. Somebody must have, because I understood they were going back to South Dakota. Q. Did you confront anyone? A. Yes, I did. Q. Who? A. My aunt. Q. What did you say to her? A. I asked her why they were doing that. I said why are you doing this, what is the purpose of this, or why are you doing this, you know. I don't understand this, you know, you brought her here, you wanted her to be safe, and she doesn't want to go, she doesn't want to go with you, so I don't understand why you are doing this, why? Q. Did you get an explanation? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 254 A. She just sort of yelled some obscenities and told me that I was stupid, and I didn't know what was going on, and kind of pushed me aside and told me to just shut up. Q. So did they take Anna Mae? A. Yeah, I, I don't remember exactly who, but somebody went to the bathroom and told her to come on, she was going with them. Q. Was Anna Mae crying? A. Yeah, she was crying. Q. Was she scared? A. Yes. Q. Did she go voluntarily? A. She didn't want to go with them, but she went voluntarily, and I think it was because of me. Q. Was she tied up? A. No, she wasn't. Q. Was she ever tied up? A. I never saw her tied. Q. Did you see them put her in the car? A. I saw them when they were leaving. At some point I went back to my bedroom, went back in to my bedroom and I spoke with Angie Begay briefly, and I asked Angie to help me, you know, to try to stop what was going on. Q. Did you see who got in the car? A. I am not exactly certain, but I know there were four JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 255 people in the car, because they put her in the hatch back, you know, in the back of the little car. Q. Whose car was it? A. Aunt Theda's. Q. What color was it? A. It was red. Q. You know what kind it was? A. I think it was a Pinto. Q. So you know she was put in to that car? A. Um-hum. Q. And now she was put in the back end? A. Um-hum. She was small and she could fit in there without much discomfort. You know, she was sitting up. Q. Was Theda in the car? A. Yes. Q. Was John Graham in the car? A. Yes. Q. Was Arlo Looking Cloud in the car? A. I think so. Q. Did he later tell you that he was in the car? A. I am not sure. Q. What did you do then? A. I tried to call the police. Q. Did you call the police? A. Yes. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 256 Q. Did you talk to somebody? A. I, at that time there wasn't a 911 direct service, you had to call a number, you know, like the seven digit number, and then they put you through to a dispatcher, something like that. And so I was only at the first part of the call and Angle Begay came in and hung the phone up and said, you know, don't do this. You know, it is just going to cause more problems, don't do this, don't get involved in this. Q. So you say Angie Begay? A. Yes. Q. What is her name now? A. Angie Janis. Q. And she stopped you from making that call? A. Yes. Q. Did you try to call back? A. No. Q. Did you try to call back after Angie left? A. I don't know if Angie left, I don't remember. Q. Well, she didn't live with you for the rest of your life, did she? A. No. Q. Did you ever call the police and report this? A. No. Q. When was the next time you saw Mr. Looking Cloud? A. I don't remember. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 257 Q. Do you remember when the next time it was that you saw John Graham? A. I don't know the, I don't know the exact date, but it was soon after that time. I don't know the exact time, but it was soon, like within a week or something like that I would say. Q. Did you ever ask Mr. Graham what had happened? A. No. Q. Why not? A. Because I had heard, or I had talked with somebody in South Dakota and they said that Anna Mae was in Oglala, so I didn't think there was any concern. Q. Well, at some point in time did you learn that she had been killed? A. Not until the day that they found her. Q. So eventually you did? A. Um-hum. Q. Did you ask Mr. Graham what happened then? A. No. Q. Why not? A. Because I never thought that he had anything to do with it. Q. Did you ever ask Mr. Looking Cloud what happened? A. No. Q. Why not? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 258 A. For the same reason. Q. So even though they left in the car with her, you didn't think they had anything to do with it? A. No. I never had anything to fear from them, they are not anybody that I would fear, and there was nothing frightful for me. It wasn't me that was frightened or fearful, it was Anna Mae. Q. That whole event, that whole meeting at your house wasn't frightening to you at all? A. No. Q. Didn't bother you at all? A. No. Q. Why did you try to call the police then? A. Because she didn't want to go. Q. It must have bothered you somewhat then? A. Yes. Q. But then you just dropped it? A. Yes. Q. When was it that you found out she was dead? A. We were here in Rapid City at Mother Butler's I think for the, one of the anniversaries of Wounded Knee. Q. So would it have been some time in February of '76? A. Probably the end of February. Possibly the first of March, I don't remember the exact date, but that is the anniversary of Wounded Knee, and that is what was going on JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 259 here. Q. Did you ever ask your Aunt Theda what had happened after they left with her, with Anna Mae? A. No, and if I had, she wouldn't have answered me anyway. She never told me anything. Q. Well, now after, some time after the body was discovered you were approached by law enforcement on several different occasions, weren't you? A. A number of years later, yes. Q. Like two years later? A. I don't, I think it was much longer than two years. I don't know the exact amount of time, but it was quite a while. Q. And you refused to talk to them, didn't you? A. Probably. Q. Well, you did, didn't you? A. Probably, yeah, I guess. You know. I didn't have too much to talk about with law enforcement at that time. Q. Well, is that because you had already forgotten about this meeting that took place at your house? A. No. Q. You had remembered it still by then, hadn't you? A. It had nothing to do with that meeting. Q. It didn't? A. No. It wasn't my practice to talk at all to law enforcement. JERRY J. MAY, RPR. CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 260 Q. So when Anna Mae was being taken out of your house you attempted to call the police, but after you found out she was dead you refused to talk with law enforcement? A. Yes. Q. When was the first time that you visited with Mr. Looking Cloud about what had happened that evening after they left your house? A. I don't think I ever did. Arlo never discussed anything with me, he would not have involved me in any of it. Q. We talked a minute ago about the fact that you were in on a conversation. A. Well, I didn't know anything until that time. Until this time that he talked to Trudell I never knew anything about what had happened. Q. Okay. My question was when was the first time? A. That was the first time. Q. So it would have been when you and Mr. Looking Cloud met with John Trudell? A. Yes. Q. Who was John Trudell? A. John Trudell was at one time the national spokesman for the American Indian Movement. He was also a close, a very close friend. And at this particular time he was, he was a poet, and he was traveling with a group called Midnight Oil, and he was the opening performance for them. And he was in JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 261 Denver. He called and told me that he was going to be there and that he would leave tickets for me at the box office. And so Arlo just happened to come that evening and we picked up the tickets and went to the Midnight Oil concert. And then the tickets had back stage passes and we went to, we went back- stage and met the people that were part of the Midnight Oil group, and I think Quilt Man and who ever else was traveling with Trudell. Q. Who was in on this conversation with John Trudell? A. We went, after the concert we went to a hotel downtown that they were all staying at, the bands were staying at, and we were there with them for a little while. I don't know how long, but for some length of time everybody just visited upstairs in the hotel room. And then at some point in time Arlo and Trudell and I went down to my car, it was parked on the street beside the hotel. Q. So just the three of you then had a conversation? A. Yes. Q. Did Mr. Looking Cloud talk about what happened after they left your house that night with Anna Mae? A. Yes. Q. Did he tell you and Mr. Trudell where they went to? A. I think he said they went to Rapid City. Q. Did he tell you where they went in Rapid City? A. I am not sure that he told me, but at what point in time JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 262 I learned that it was Thelma Rios' house, but I know they went to Thelma Rios' house. I don't know that he told us that. I don't remember exactly what was, who said what or who told what, but I knew they went to Thelma Rios' home. Q. He told you they went to a home in Rapid City? A. mn-hum. Q. Did he tell you where they went after that? A. He said they went to Rosebud. Q. And did he tell you what he did while they were in Rapid City at that home? A. No. Q. Did he ever tell you that he was helping to guard Anna Mae? A. I think he was there, but I don't know that guard was the word that was used. Q. Well, may I approach. Your Honor? THE COURT: You may. BY MR. McMAHON: Q. Have you had a chance to review your grand jury testimony? A. Yes. Q. Does that help refresh you, what he said? A. There was a question on there if Arlo was guarding Anna Mae Aquash at that house, and my reply is that I think he was along with John Boy, but I don't know that. I wasn't there. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 263 Q. Where did he tell you they went from Rapid City? A. He just said to Rosebud. Q. Did he tell you that they had stopped on the Pine Ridge Reservation at Allen? A. He may have, but I don't remember. Q. He didn't say what particular place they went to on Rosebud? A. He didn't know. Q. Did they stop somewhere? A. What do you mean did they stop somewhere, when they got to Rosebud? Q. Yes. A. He said they went to a house in Rosebud. Q. They went to a house, but he didn't know whose house? A. No. Q. And what did he tell you took place while they were at that house? A. He said he didn't go in, he stayed outside. He sat outside with Anna Mae in the car. Q. And who went in the house? A. I guess John Boy and Aunt Theda. Q. What did he tell you about a conversation he had with Anna Mae in the car while they were alone together in that car? A. He said that she told him that they were deciding her JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 264 fate in there, and that he should just let her go. He should let her go. Q. Didn't she beg him to let her go? A. I think she asked him, you know, very sincerely. I guess you could say begging. Q. And he wouldn't let her go? A. He said that he couldn't do that. That nothing -- she thought that they were deciding what was going to happen to her in there, and she told him that they were going to be, what ever they decided in there he was probably going to have to carry it through. And he said that he told her that that wasn't, that wasn't going to happen, there wasn't any basis for that, you know, he didn't believe that. Q. He wouldn't let her go, would he? A. No, he said he couldn't do that. Q. Did he tell you where they went then? A. He said they drove into the Bad Lands. Q. To the Bad Lands? A. Um-hum. I don't know the place. Q. What happened then? A. He said that they got out of the car, and that Theda stayed in the car, and that he and John Boy walked up a hill. Q. What was Anna Mae saying while they walked up that hill? A. He said that she said that they didn't have, they don't have to do this, they could just leave her there and let her JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 265 go. Q. Was she begging them not to kill her? A. I don't know. Q. You on one occasion relayed what Arlo told you to Kamook Nichols, didn't you? A. We discussed a lot of things. Q. And that is part of what you discussed, isn't it? A. Yes. Q. And you have had an opportunity to review, just review now a part of a tape recording transcript that was made during that conversation, haven't you? A. Yes. Q. Does that help refresh your recollection as to what Mr. Looking Cloud told you Anna Mae was saying as they walked up that hill? A. Yes. Q. What was she saying? A. That she asked them to let her go, that they didn't have to do that to her. Q. Was she crying? A. She was crying I think. Q. And she telling them that she had two young daughters? A. I don't know that. Q. She begged them to let her go? A. I don't know that. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 266 to 280 PAGE 266 Q. You don't remember that? A. That doesn't say that in there, doesn't say anything about two young daughters. Q. Did she tell them she hadn't done anything wrong to anybody? A. Yes. Q. She told them they didn't have to do this to her? A. Yes. Q. Mr. Looking Cloud also told that to Mr. Trudell, didn't he? A. I don't remember. Q. Isn't that what he told you? A. Yes. Q. Now you said before you were there when Mr. Looking Cloud visited with Kamook Nichols about this, correct? A. Yes. Q. Did he tell her a lot less of the story than he told to you and Mr. Trudell? A. He didn't tell her very much. I don't even remember really what we talked about, but he had just gotten out of jail, he was in a very fit place, he was detoxing, he didn't have too much to say. MR. McMAHON: That's all I have. Your Honor. THE COURT: You may cross examine. CROSS EXAMINATION BY MR. RENSCH: JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 267 Q. Would you ever lie under oath? A. No. Q. Have you ever lied under oath in this case? A. No. Q. Are you afraid that people think you have something to do with the death of Ms. Pictou-Aquash? A. Afraid like how? Q. Are you afraid you are going to be charged in helping with her murder? A. I felt that at times. Q. Did you help with her murder? A. No, I did not. Q. Your Aunt Theda Clark back in 1975 was how old? Was she in her fifties? A. She is 80, going to be 81 years old, so I don't know. Q. You say that when you tried to stop this that she just basically brushed you aside and called you stupid, is that right? A. And a few more. Q. What did she say to you? A. She cursed and cussed, and which was her normal language at times when she was angry, and even when she wasn't it was her normal language. Q. She was pushy, wasn't she? A. Yes. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 268 Q. She would tell people to do things, wouldn't she? A. I don't know what the difference between telling and asking is, but she asked in a forceful manner, and not very many people did not do what she asked. Q. Do you love your Aunt Theda? A. Yes, I do. Q. Been close to her for many, many years? A. She was like my second mother. Q. You would never want to see anything bad happen to her, would you? A. No. Q. You agree that blood is thicker than water? A. Yes. Q. Meaning you are closer to your relatives than you are your friends, right? A. Well, in our way almost everybody is our relative, all of the Lakota people are my relatives. Q. Do you specifically remember what Arlo told you happened from the point Ms. Pictou-Aquash was taken out of that car and walked to the edge of the hill? A. Do I remember exactly? Q. Yes? A. Just that I think she tried to dissuade them about taking her up the hill. Q. Did she try to dissuade Arlo, or did she try to dissuade JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 269 John Boy, do you know? A. I don't know. I think probably both, but I wouldn't know. Q. When you listened to Arlo, it was your impression that when she was shot it was a total surprise to him, isn't that true? A. Yes. Q. When you listened to what Arlo described to John Trudell, it was your impression that he didn't want her to die, isn't that true? A. I don't believe he ever thought it would happen. Q. Well, was it your impression in listening to his words that he wanted her to die? A. No. Q. Did you ever hear him say that he wanted her to die? A. Of course not. Q. Did you ever hear him say that he was in any way in control of the situation? A. He was never in control. Q. It is at your house when this meeting occurred, I want to clear something up. Was Arlo present at this meeting? A. I never saw him. There was so much going on and there was so much confusion, I never, ever saw Arlo. I never talked to Arlo. I wish that I had had the opportunity to talk to or see Arlo, I never saw him. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 270 Q. Can you tell this jury with certainty that he was not in that meeting room? A. He was not in that meeting room. I don't know at what point he came in, I never saw him. I have heard from others that he came in and went down into the basement. I have heard some others that he never came all the way in the house. I don't know, I never saw him. I know, I don't even know how I know that he left with them. Things were really confusing, and, you know, it was just really hard to be absolutely certain of anything. Q. Is it possible that when Arlo was explaining what Ms. Pictou-Aquash was saying that he was saying that she was asking the people in the car to let her go? A. I don' t know. Q. Do you, can you specifically recall him talking about just exactly where Ms. Pictou-Aquash was when she was asking to be let go? A. It was either in the car or it was at the hill. I can't absolutely say for certain. Q. It's very important we try to pin this down, because -- well, it's obvious why it's important. Do you know whether what he described to you was Ms. Pictou-Aquash saying these things in the car, or walking up toward the hill? A. I don't know. I am not absolutely certain. Q. So you have known Arlo for a long time, is that right? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 271 A. Yes. Q. After this weekend in December of 1975, he wasn't doing much with the American Indian Movement after that time, was he? A. I didn't see Arlo for some length of time. I can't tell you what the length of time was, but I just, that was possibly one of the reasons why we never talked about anything that had happened, because I didn't see him. Q. In these years that have passed since that December night, has Arlo, what has he become?' A. Well, he drinks a lot. He has, always had a home with this family, but he chose to just be a vagabond and go about wherever, and I don't know, just everybody knew him, everybody knows him in Denver. All the people and many others, the Lakota people, they are, he is welcome in their homes, everybody's children they all call him uncle. He just comes and goes from all different peoples' homes. Q. Did he live on the streets? A. Like what do you mean live? He lived out, he was out on the street a lot, but he didn't sleep on the street unless he passed out there maybe, I don't know. Q. Was he a street person? A. It is kind of hard to delineate a street person. If he had a home, if you have a home to go to, if you choose to be out and about, then it is sort of a matter of choice, I guess, JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 272 I don't know. Q. Did he have apartments or houses or anything like that to go to that were his own? A. At times he did. Q. Through the years as you have spoken to Arlo, how has his ability to communicate changed, if any? A. How has his. Q. Ability to communicate changed? A. He doesn't trust a lot of people. Q. How about just the way he talks, do you feel as you listen to him that, well, he might have some problems with his mind? A. I think that drinking debilitates anybody's mind. Q. Are you telling this jury that Arlo told you that he helped kill this poor lady? A. Arlo never told me that he helped kill anybody. Q. Well, you have told us that he said that he and John Boy walked her out to the edge while she was begging, and I need to know did he tell you that? A. I can't tell you exactly when anything happened, but I know, I don' t know. Q. Isn't it true, Ma'am, that you testified before a grand jury in 1995, you remember coming up and testifying before the grand jury? A. In Sioux Falls. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 273 Q. Page 25. I want to ask you if were you asked this question and if you gave this answer. Question, and it's your testimony to this grand jury that you never talked to Arlo Looking Cloud about what had happened to Anna Mae? Answer, no, I didn't talk to Arlo. Arlo didn't talk to me about it. Is that the question and answer that you gave under oath back in 1995. A. Yes. Arlo never did really talk with me about it. I only was there when he talked, he told Trudell what happen, Arlo never discussed anything with me. Q. You were just telling Mr. McMahon that he was talking to you out there in the car while Mr. Trudell was there? A. He wasn't talking to me, I was sitting in the car and he was talking. He told Trudell, I just sat there and listened. I wasn't a part of the conversation. Q. You understand, do you not, that you don't want anything bad to happen to your Aunty Theda, do you? A. No. Q. Would you lie for her? A. Would I lie for my aunt? Q. Yes? A. I wouldn't lie for her, I wouldn't speak at all. Q. Would you lie for Arlo? A. That's a difficult question. Q. Would you lie under oath? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 274 A. No. Q. Arlo told you that he was coming over to your house to meet a friend by the name of Joe Morgan, didn't he? A. Yes. Q. And that he was coming over to meet Joe Morgan to go drinking with him? A. Yes. Q. And that when he showed up at your house, your Aunt Theda asked him if he would drive to Rapid City, isn't that correct? A. Yes. Q. And that he drove to Rapid City, isn't that right? A. I can't say that he drove all the way. Q. He drove part of the way? A. I am sure that he drove part of the way. Q. And they ended up at some vacant apartment that we later learned to be Thelma Rios? A. Yes. Q. And that when Ms. Pictou-Aquash is in that apartment, Arlo went to get gas for the car and ran in to a guy named Tony Red Cloud? A. I think he did tell me that, but I don't remember that. When you are telling me then you are bringing back a memory that I have kind of forgotten. Q. And that when he got back, Theda and John Boy were mad JERRY J. MAY. RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 275 at him because he was gone for so long? A. He did tell me that. Q. When did he tell you that? A. I don't know, I don't remember. Q. And then he told you that they went down to Rosebud, and he didn't know whose house it was, but it was by the hospital down there, isn't that correct? A. I don't think he, I don't remember even by the hospital, all I know it was a house in Rosebud. Q. And that he just stayed out in the car as Theda and John Boy went in? A. Yes. Q. Then the car drove toward Kadoka? A. Yes. Q. And that when the car pulled over on the side of the road, John Boy got Ms. Pictou-Aquash out of the car, isn't that what he told you? A. Yes. Q. And that either Theda or John Boy told him that he should follow John Boy, isn't that what he said to you? A. Yes. Q. And that when he started to follow, she began to pray and John Boy shot her in the back of the head, and this was a surprise to Arlo, isn't that what he told you, Ma'am? A. I think that he said that she knelt down and then John JERRY J. MAY, RPR, CM 400 South Phillips Avenue, tt305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 276 Boy shot her. Q. But it was a surprise to him? A. Yes. Q. And that John Boy turned, and Arlo had never met him before, did he tell you that? A. I don't think Arlo did know John Boy. Q. And that when John Boy turned he looked at Arlo, and Arlo didn't know what to do, did he tell you that? A. I don't remember that. Q. And that he then asked for the gun from John Boy because he wanted to empty it, and he fired the gun over the embankment, didn't he tell you that, Ma'am? A. I don't remember that. Q. And he emptied that gun because he didn't want John Boy to be able to shoot him, isn't that what he told you? A. I don't, you know what, what you are telling me I have some recollection of, but I don't remember when or what. Q. And that they went back to the vehicle and it was quiet in the vehicle as they drove back toward Denver? A. Yes. Q. And that they stopped at a bridge because they were going to bury the gun, didn't he tell you that? A. He didn't tell me, he told Trudell. Q. He told Trudell that they stopped at the bridge? A. They stopped and they buried the gun someplace. He JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 277 didn't say where, I don't remember where. Q. So what you are telling us, the only time you ever talked to him was when he was with Trudell, is that what you are saying? A. Um-hum. Q. Once they got back to Denver he was through with the American Indian Movement, he was done with it, isn't that what he told you? A. I don't know if he told me that or, you know, or it just was that way. Q. This whole thing ruined his life, didn't it, Ma'am? A. Yes, it did. Q. He never once said to you that he wanted that woman to die, did he? A. He wouldn't have had a part of it if he knew that was going to happen. MR. RENSCH: Nothing further, thank you. THE COURT: Redirect. REDIRECT EXAMINATION BY MR. McMAHON: Q. Where is your Aunt Theda now? A. She is in a nursing home in Crawford, Nebraska. Q. You said you wouldn't have wanted anything bad to happen to her? A. Of course not. Q. And you don't want anything bad to happen to Mr. Looking JERRY J. MAY. RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 278 Cloud either, do you? A. No. Q. You want to protect him the best that you can? A. Yes. Q. You were asked some questions about whether there was one conversation about Anna Mae begging to be let free or two, you remember those questions from Mr. Rensch? A. Um-hum. Q. Now when you told Kamook Nichols what Mr. Looking Cloud told you concerning what was going on when they got her in the car in the Bad Lands, didn't you tell her that she was begging them not to kill her at that time? A. I don't remember. Q. You don't remember. Did you just read this? A. Yes, but then all of this is, there is pages and endless, you know. Q. But didn't this say right here that you were talking about when they went out to the field she was begging them not to kill her? A. Yes. Q. And that she was crying? A. Yes. Q. And that she -- A. That's what it says on there. So that's the testimony obviously. I can't tell you exactly, because I don't remember JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 279 everything. Q. And she just kept asking them not to do it? A. I would say yes. Q. And that they didn't listen to her, and they just kept marching her out there? A. Well, I don't know how far the march was, but I assume so. Q. That's what you said, isn't it? A. That's what it says on the paper. Q. Are you denying that this tape recording is accurate? A. What do you mean by that? Q. Are you claiming that you didn't say this? A. We talked about a lot of different things. Q. Are you claiming that you didn't say this? A. No. You are confusing me. Q. Just a minute. Page 64, Counsel. Did you have a chance to look at your grand jury testimony? A. Yes. Q. And you were asked a question, did you have a conversation with Anna Mae while he was setting in the car with her, correct? A. Yes. Q. And your answer was that he said that Anna Mae told him that I mean she begged him, and pleaded with him to let her go, to let her out, to let her go, and he told her he couldn't JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 280 do that? A. Yes. Q. So there were two conversations about being let go, weren't there? A. But see, I am not certain of that. That's what I keep telling you, I am not certain about. I believe that this happened, but I don't know which place it was. I don't know if it was one place or the other. I don't know that there was two conversations, I think there was one. Q. You talked about two? A. Well. Q. You talked about one in the car and one at the field, didn't you? A. Yes, but I think that there was only one. I am not certain. Q. Well, which place was it? A. I don't know. Q. Which one were you making up? A. I don' t know. MR. McMAHON: That's all. RECROSS EXAMINATION BY MR. RENSCH: Q. You know we went through some testimony back in 1995 where you denied under oath having any conversations at all with Arlo Looking Cloud about this, do you recall that? A. Yes. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 281 to 295 PAGE 281 Q. Are you lying when you said that? A. No. Q. How can you tell us what Arlo said if you didn't have any conversations with him? A. I didn't have a conversation with Arlo, I only heard what he said to John Trudell. Q. Now, let's talk about page 67, the question you were just asked and the full answer. Question, did he have a conversation with Anna Mae while he was sitting in the car with her? Answer, he said that Anna Mae told him, I mean she begged him and pleaded with him to let her go, to let her out, let her go, and he told her he couldn't do that. And she said they are in there deciding my fate, and your, they are probably going to make you pull the trigger. And he said, you know, that's not true, that's not going to happened and you are just being paranoid and stuff like that. And she told him no, I am telling you the truth, and you should just let me out and let me go. Is that your full answer that you gave to that question? A. Yes. Q. Did you get the impression that Arlo knew that she was going to die? A. Arlo didn't know she was going to die. Q. Are you sure of that? A. I am sure. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 282 MR. McMAHON: Your Honor, I object. THE COURT: Overruled -- what was the basis for the objection? MR. McMAHON: Argumentative, calling for pure speculation. THE COURT: Sustained, answer is stricken. Anything further. MR. RENSCH: Nothing. THE COURT: Anything further. MR. McMAHON: Nothing, Your Honor. THE COURT: Well it is five to 5:00, so we are not going to call another witness at this time. Remember what I told you before, don't let anybody talk to you about the case. If anybody does try to talk to you about the case, you let me know about it. You can leave your notes back here, nobody is going to look at them tonight. Don't try to do any separate independent research, I don't want you to look at the newspaper or the news. I don't want you do hear somebody else's slant on this in the event there is anything in the newspaper about it, because you are the ones that are going to make the decision based upon the facts as you see them. Not what somebody reports is their view of what is going on, if in fact somebody does. So don't. Skip the newspaper, and the news, and don't talk to each other about the case either until we are completely done with the case and you are back in the JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 283 jury room deliberating. So we will be in recess then until 9:00 tomorrow morning. Thank you, and good night. Please stand for the jury. (Jury Leaves). THE COURT: I wanted to inquire as to when the government thinks they will finish their case. MR. McMAHON: I think tomorrow. Your Honor. Mid afternoon. THE COURT: That was my guess. Obviously you know more about your witnesses than I do. And if that comes to pass, then when does the defense think they will finish their evidence? MR. RENSCH: All my witnesses are subpoenaed for Friday morning at 8:00, and I suspect you would be looking at no more than four hours. MR. McMAHON: Your Honor, I am not exactly sure which witnesses he is talking about. If there's other ones than are on the list that he gave us, but most of those witnesses are around here, so there wouldn't be any reason we couldn't start right away. MR. RENSCH: I have subpoenaed them for Friday morning at 8:00. If they are around here I am all for it. THE COURT: See if they can be available so we can have witnesses on tap when the government finishes so we can go on, because it would work out well time wise in terms of JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 284 completing the evidence then. And you would be able to sounds to me like maybe settle instructions and argue on Friday. Because the instructions are pretty simple. So looking down the road then just in terms of time planning for you, how much time do you want for argument? I will listen to what you want and then I will tell you what you get. MR. McMAHON: I guess it is a little hard to guess at this time because if haven't heard what is coming from the other side, Your Honor, but I can't imagine I would want more than an hour. THE COURT: How about the defense. MR. RENSCH: If they want an hour, I want an hour, but I think we can argue it in thirty minutes. THE COURT: Well, when you are done is up to you, but I will give each side an hour. I have a no sand bag rule which applies, of course, to the prosecution, and that is that you can't argue any longer in rebuttal than you argued initially. So for example, if there was 20 minutes that the prosecution used in opening arguments, then you only get twenty minutes in rebuttal. On the other hand, if the prosecution used thirty minutes in opening arguments, they get thirty for rebuttal. Obviously if they use more than that, they only get what time is left out of an hour. So the prosecution is familiar with that because they have tried other cases in front of me, and Mr. Rensch, you see what I am JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 285 talking about. MR. RENSCH: Is there any way I can prevail upon the Court to change its mind about that rule? Let me just bring something up. Under the rules of debate, for example, if you have a statement and a response and then a rebuttal, the rebuttal usually isn't allowed to be more than 33 percent of the entire time allotted. If I get in to a situation where they get to argue a half an hour, I get to argue for what will probably be a half hour, and they get to argue for a half hour again, I think it puts me at a disadvantage. I would request they be limited to the extent they can argue for up to thirty or forty minutes and have maybe twenty minutes on rebuttal, or maybe a little less than that. But if we are in the situation where the rebuttal can be as long as the initial statement, I don't have any authority for it, but it strikes me as working an inequity. THE COURT: Well, but the thing you hypothecated is exactly what they are held to. For example if they argue forty, they only get twenty in rebuttal. If they argue twenty they get twenty. I don't quite understand. MR. RENSCH: I am worried about them arguing thirty and getting thirty. THE COURT: If that's what they argue, that's what they get. You won't find any authority to the contrary. Matter of fact, a lot of Judges don't limit the rebuttal. We JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #30 5A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 286 are in recess. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 287 INDEX TO WITNESS ROGER AMIOTTE DIRECT EXAMINATION BY MR. McMAHON .............. 23 CROSS EXAMINATION BY MR. RENSCH ................ 29 NATE MERRICK DIRECT EXAMINATION BY MR. MANDEL ............... 30 CROSS EXAMINATION BY MR. RENSCH ................ 42 REDIRECT EXAMINATION BY MR. MANDEL ............. 47 JAMES GLADE DIRECT EXAMINATION BY MR. MANDEL ............... 49 DON DEALING DIRECT EXAMINATION BY MR. MANDEL ............... 54 CROSS EXAMINATION BY MR. RENSCH ................ 59 JOHN MUNIS DIRECT EXAMINATION BY MR. MANDEL ............... 62 CROSS EXAMINATION BY MR. RENSCH ................ 65 REDIRECT EXAMINATION BY MR. MANDEL ............. 66 RECROSS EXAMINATION BY MR. RENSCH .............. 67 DR. GARRY PETERSON DIRECT EXAMINATION BY MR. McMAHON .............. 68 CROSS EXAMINATION BY MR. RENSCH ................ 79 WILLIAM WOOD DIRECT EXAMINATION BY MR. MANDEL ............... 80 CROSS EXAMINATION BY MR. RENSCH ................ 89 EVAN HODGE DIRECT EXAMINATION BY MR. MANDEL ............... 96 CROSS EXAMINATION BY MR. RENSCH ............... 100 KIMBERLY EDWARDS DIRECT EXAMINATION BY MR. MANDEL .............. 101 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 288 DARLENE NICHOLS DIRECT EXAMINATION BY MR. McMAHON ............. 112 REDIRECT EXAMINATION BY MR. McMAHON ........... 178 RECROSS EXAMINATION BY MR. RENSCH ............. 180 MATHALENE WHITE BEAR DIRECT EXAMINATION BY MR. McMAHON ............. 181 CROSS EXAMINATION BY MR. RENSCH ............... 189 BOB RITER DIRECT EXAMINATION BY MR. McMAHON ............. 190 RAYMOND HANDBOY DIRECT EXAMINATION BY MR. MANDEL .............. 199 REDIRECT EXAMINATION BY MR. MANDEL ............ 206 JOAN DECKER DIRECT EXAMINATION BY MR. MANDEL .............. 207 ANGIE JANIS DIRECT EXAMINATION BY MR. MANDEL .............. 209 CROSS EXAMINATION BY MR. RENSCH ............... 229 REDIRECT EXAMINATION BY MR. MANDEL ............ 234 TROY LYNN YELLOW WOOD DIRECT EXAMINATION BY MR. McMAHON ............. 235 CROSS EXAMINATION BY MR. RENSCH ............... 267 REDIRECT EXAMINATION BY MR. McMAHON ........... 277 RECROSS EXAMINATION BY MR. RENSCH ............. 281 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 289 INDEX TO PLAINTIFF EXHIBITS 4 Marked ............................. 24 4 Offered ....................... 24 4 Received ...................... 24 5 Marked ............................. 32 5 Offered ....................... 35 5 Received ...................... 35 6 Marked ............................. 27 6 Offered ....................... 28 6 Received ...................... 28 8 Marked ............................. 25 8 Offered ....................... 27 8 Received ...................... 27 12 Marked ........................... 237 12 Offered ..................... 237 12 Received .................... 237 14 Marked ........................... 118 14 Offered ..................... 119 14 Received .................... 119 23 Marked ............................ 33 23 Offered ...................... 35 23 Received ..................... 35 27 Marked ........................... 147 27 Offered ..................... 187 27 Received .................... 187 28 Marked ............................ 34 30 Marked ............................ 75 30 Offered ...................... 76 30 Received ..................... 76 31 Marked ............................ 73 31 Offered ...................... 74 31 Received ..................... 74 32 Marked ............................ 73 32 Offered ...................... 74 32 Received ..................... 74 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 290 33 Marked ............................ 84 33 Offered ...................... 85 33 Received ..................... 85 40 Marked ........................... 106 40 Offered ..................... 107 40 Received .................... 107 41 Marked ........................... 106 41 Offered ..................... 107 41 Received .................... 107 42 Marked ........................... 208 42 Offered ..................... 208 42 Received .................... 208 INDEX TO DEFENSE EXHIBITS A - E Marked ......................... 45 A - E Offered ................... 46 A - E Received .................. 46 MISCELLANEOUS INDEX Offer of Proof ...................... 155 JERRY J. MAY. RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 291 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 II * * ******************* 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 292 (9:00, 2-5-04.) THE COURT: Please be seated. Good morning. A little more with regard to my continuing exposition on hearsay. Counsel can be referred to an Eighth Circuit case United States versus Amahia, A-M-A-H-I-A, 825 F.2d 177, 1987 Eighth Circuit case. There the Court in another criminal case said under rule 801 (c) of the Federal Rules of Evidence an out of court statement not offered to prove the truth of the matter asserted is not hearsay under 801(c). The statement not offered for the truth of the matter asserted is not hearsay because reliability, thus truth, is not at issue. Also in Goldstein Trial Techniques updated as of November, 2003, there is a further discussion at footnote 10 dealing with the same thing. In only one instance, though, after objection did the government then say that it was not offered for the truth of the matter stated, although in previous instances and in that instance I gave limiting instructions so limiting it anyway. Alright, bring in the jury, please. (Jury Enters). THE COURT: Good morning. You may proceed. MR. MANDEL: United States would call Denise Maloney, Your Honor. DENISE MALONEY PICTOU, called as a witness, being first duly sworn, testified and JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 293 said as follows: DIRECT EXAMINATION BY MR. MANDEL: Q. State your name, please? A. Denise Pictou. Q. Where do you reside? A. In Ontario, Canada. Q. Were you related to the decedent in this case, Anna Mae Pictou-Aquash? A. Yes, she was my mother. Q. You traveled down here for the trial? A. I did. Q. Did you come with anybody else? A. Yes, I brought my sister, my father, and the chief of our nation. Q. Where did they come from? A. Nova Scotia. Q. I want to ask you, was there a time when you had the opportunity to have a conversation with Arlo Looking Cloud regarding this matter? A. Yes, there was. Q. Can you tell us when that happened and how it came about? A. In early April of 2002 I got a phone call from Paul DeMain from, Paul DeMain, and he had told me that he had been JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 294 contacted by Richard Two Elk and that he was in contact with Arlo, and that Arlo wanted to, that he needed to speak with Anna Mae's daughter. Q. That would be you and your sister Debbie? A. That's right. At the time this was big for us, because we basically hadn't talked to anybody. So I called her up and made a decision to make a phone call and got Richard's phone number from Paul DeMain, called him up and spoke with him briefly. He said Arlo is here and wants to talk to you, and they put him on, and he -- Q. Let me stop you for one moment. How does Richard Two Elk figure in to all this? A. I believe he is his brother, that's what we were told, and I had trusted Paul DeMain in telling me that he was his brother, and that's pretty much all I know about Mr. Two Elk. Q. So you made the call to Richard Two Elk. Do you know where he was located at the time? A. I didn't know, no. I had the phone number, and I am not familiar with American area codes, so I had no idea what state he was in. Q. Do you remember about what date this phone call took place? A. It was early April. Early April in the single digits around the 3rd, 4th, 5th, somewhere in there. Q. Of 2002? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 295 A. 2002. Q. So it was about two years ago? A. That's right. Q. And did you get an opportunity to speak to Arlo Looking Cloud on that occasion? A. Yes, we did. He got on the phone. He was fairly quiet. Q. Who else was on the phone call? A. My sister Debbie. Q. What about Richard Two Elk? A. Not that I was aware of, no. I heard him hand the phone over, so I don't know. Q. To your knowledge it was just the three of you on the conversation? A. That's correct. Q. How did the conversation start out? A. He was very quiet. We were all kind of quiet at first. I don't think any of us knew what to say. My sister right away asked him if we could record the conversation for our own purposes, and he said no. So we totally respected that, that was fine. We asked him if this was something that he wanted to do. He said yes, and he was very emotional and said that he felt bad that he hadn't done it a long time ago, and we at the time were very emotional as well. We asked him to speak from his heart, that we were grateful that he was talking to us now, and that's what mattered to us, that we needed to hear JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls. South Dakota 57104 (605) 330-4877 Index PAGES 296 to 310 PAGE 296 this from somebody who was there, and -- Q. Did you then ask him about the details of what took place? A. Yes. We asked him that we really didn't need to know all the details, but we needed to know how our mother died. Q. You recall what he told you about that? A. Yes, I do. He had told me that he had gotten a phone call and that he was instructed to go with Theda and John Boy to Denver to pick up my mother at Troy Lynn's house. Q. Let me interrupt you. He say he was the one who got the phone call? A. They had received a phone call. He didn't say exactly who got the phone call. And I asked him then at that point, I guess he was emotional, if he had been drinking that day, he said no. Then I asked him was my mother at Troy Lynn's house when he got there, and he said yes, she was there. And that when he got there they picked her up and took her to Rapid City the first day, and then the second day went to Rosebud, and from Rosebud went to a house, he stayed in the car with my mother, and Theda and John Boy went up to into the house. And we asked him at that point how our mother was in the car, if he had talked to her, and he said no, not really. He said no, not really, they didn't have a conversation. We were trying to find out what her demeanor was like for our own personal purposes. He then said that they came out of the house and JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 297 that he felt bad because he didn't know that's what they were going to go out and do. He said there were people discussing and calling her informants, that Angie, Theda and John Boy had called her an FBI informant, and that they thought they were just taking her out to scare her. Then they took her out to a location, he didn't, he may have said, I can't remember the exact site. Q. Specifically did he say what happened when they got to that location? A. Yes, he did. He said that when they got there they all got out of the car and that he was instructed to stay at the car. Q. He meaning Arlo? A. Yes, he said I was told to stay with the car. That Theda and John Boy went up over the hill, and he heard a gun shot, and Theda and John Boy came back and my mother didn't, and they got in the car and drove away. Q. Did he tell you anything else about this incident? A. That was it. That, we thanked him for telling us, and we wished him well in his healing, and that was the end of the conversat ion. Q. So I understand this, and I am clear, what he told you was that he wasn't even present when she was shot? A. No. Q. And that Theda Clark and John Boy Patton did that? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 298 A. He used the words Theda and John Boy, yes. Q. When your mother was murdered, how old were you? A. I would have been eleven approximately. Well, I didn't find out until just shortly before my eleventh birthday. I wasn't told right away. Q. How old was Debbie? A. She is fifteen months younger than me. MR. MANDEL: I have no further questions, Your Honor. THE COURT: Cross examination. CROSS EXAMINATION BY MR. RENSCH: Q. My condolences, Ma'am. How long was the conversation? A. It wasn't terribly long. I couldn't put a time on it. Time stood still for me at that time. Q. Did Mr. Looking Cloud say that he was sorry? A. He said, his words to me were he felt bad, and he may have said sorry, but what I heard was that he felt badly about he hadn't called us in a long time. Q. He told you that he didn't know that they were going to kill her? A. That's correct. Q. When you mentioned that something about a phone call, at first you said he had gotten a phone call, and then you said he might have said they had gotten a phone call. A. Um-hum. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 299 Q. Do you remember exactly what he said about that? A. I don't remember clearly, no. That there was a phone call that day was the impression he left on me. Q. So someone had made a phone call somewhere asking that your mother be taken someplace? A. That's correct. MR. RENSCH: Thank you, Ma'am, nothing further. THE COURT: Anything further? MR. MANDEL: No, Your Honor. THE COURT: Thank you, Ma'am, you may step down. MR. MANDEL: United States would call Candy Hamilton, Your Honor. CANDY HAMILTON, called as a witness, being first duly sworn, testified and said as follows: DIRECT EXAMINATION BY MR. MANDEL: Q. Could you state your name, please? A. Candy Hamilton. Q. Spelling on your last name? A. H-A-M-I-L-T-O-N. Q. Candy with a C, right? A. Yes. Q. Where do you reside? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 300 A. Oglala, South Dakota. Q. Can you tell us what your current occupation is? A. Yes, I am a grant writer and coordinator for the Tiwahe Tipi, and that's a group of Tiospas that are organizing to do self help projects, and I teach for the Black Hills State University in the career learning center. Q. Are you a native South Dakotan? A. No. Q. Where are you from originally? A. Chattanooga, Tennessee. Q. When did you first come out to South Dakota? A. In October of 1973. Q. Could you tell us how it is that you came to come out to this area of the country? A. I had been active in some political movements around, I lived in Atlanta at the time, I had been involved there, and I was then a reporter, and a friend of mine who I had done reporting work with had been out here and during the siege at Wounded Knee. And when we were both back in Atlanta she asked me to come out and work with the media and help the committee and the Wounded Knee Defense-Offense Committee in that way, and she after many months finally talked me in to it. Q. Is Wounded Knee Offense-Defense Committee often referred to as WKLDOC? A. Yes. JERRY J. MAY. RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 301 Q. What was your intention when you came out here, what were you going to do for them? A. My intent originally was to put together a press packet for the committee, put together a list of media contacts, train somebody to do the media work, and leave after about six weeks. Q. Is that what happened? A. No. I got very interested in the whole situation, and in the people and the issues that were involved, and ended up staying with the Wounded Knee committee until '75, '74-75, and then after that I returned to work with the Oglala Legal Committee after the shoot-out at Jumping Bulls. Q. How long did you stay involved with WKLDOC? A. Well, I guess when we formed the Oglala Legal Committee it was sort of an adjunct of the Wounded Knee Committee. I was less active with them and more active with the people right there in Oglala than with the committee, but I was a part of it through '76. Q. You live in Oglala on Pine Ridge today? A. Yes. Q. Are you still actively involved in political causes down there? A. Well, with the people who are organizing there through the Tiospas, I work with them. Q. Are you familiar with an individual named Anna Mae JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 302 Pictou-Aquash? A. Yes. Q. Can you tell us how you first came in contact with her? A. When I first went to Oglala after the shoot-out, she was, we lived across the road from each other. I was at the Weasel Bears, and she had a little trailer across the road at June Little and Wanda Sills house, and we visited back and forth frequently. Q. This would have been the end of 1973 about? A. No, that was after the shoot out in seven -- Q. Excuse me, '75? A. '75, yeah. Q. In terms of your involvement with WKLDOC at that time -- first of all, where was the WKLDOC office located? A. On Allen Street here in Rapid. Q. And is that still an existing structure today? A. Yes. (Exhibit 34-35 marked For identification.) BY MR. MANDEL: Q. I have handed you what are marked Exhibits number 34 and 35. I will ask you if you recognize what is in those photographs? A. Yes, that is the house that the Wounded Knee Legal JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 303 Offense-Defense Committee rented and used for offices and some living space in '75. Q. These are current photographs, or more current than that? A. Yes. Q. Things look pretty much the same as they did back then? A. The back looks very much the same. The front appears somewhat different. Q. Did you have an opportunity to go in to that house recently? A. Yes, in the fall I went in and looked at it. Q. Was the interior the same? A. No, it was very different. There was a room as you walked in the front door, there used to be a room that was closed off to the left of the front door. And then kind of an open room. That had changed, there was no separate room there any more, and somebody had put in a fireplace that took up a great deal of space that was free when the committee was there. MR. MANDEL: Your Honor, I offer Exhibits 34 and 35 at this time. MR. RENSCH: No objection. THE COURT: Exhibits 34 and 35 are received. BY MR. MANDEL: Q. You mentioned that WKLDOC had the office up here in JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 304 Rapid City. Did they have any other offices? A. I think at that time there might have still been a committee house in Cedar Rapids, Iowa, and there was the AIM school and a house where a number of AIM people lived, and then we had the little house and office first at Weasel Bear's and then Jumping Bull's where the Oglala Legal Committee worked. Q. Was the Oglala Legal Committee part of WKLDOC, or how did that fit together? A. Some people thought so and some didn't. It was, I suppose in essence it was. Q. Did you work down in Oglala or up in Rapid City? A. When I first came back after the shoot-out I worked in Rapid City at a house, I think it was on Fairview right off Mount Rushmore, and did the media work there. Before I moved to Oglala. Q. Just so we know. Exhibit 34 I am showing now, that would be the front of the WKLDOC house? A. Yes. Q. Then Exhibit 35 that is now displayed, that would be the rear? A. That's the back of the same house. Q. Going back to 34, looking at it on the screen there, if I can get it straight, keep myself out of there. Drawing a circle around a window on the front, do you see that? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 305 A. Yes. Q. And is that where that little room was located that you are talking about? A. Yes. Q. Do you remember a time in December of 1975 when you were present at the WKLDOC house? A. Yes. Q. Can you tell us how that came about? A. I came up to Rapid City with Jeanette Eagle Hawk and Charlie Long Soldier, because for one reason the next day I was to catch a ride to go to Sioux Falls to testify at Russell Means' Sioux Falls trial. And also I was to meet a friend who I had worked with at the Wounded Knee Committee earlier who no longer was, well, she didn't work in Rapid City, and she was going to be in town, and so I came up to see her the night before and catch my ride to Sioux Falls the next day. Q. You were going to testify the day after that? A. The day after I arrived, yeah. Well, I testified, we came up one day, we left the next day, the next day I testified. Q. Came up on Wednesday, December 10th? A. Probably, yeah. Q. And then Thursday you were in Rapid City? A. Thursday I was in Rapid, Thursday night we left and got to Sioux Falls late Thursday night, and I testified on the JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 306 Friday. Q. Was there anything in particular going on on that Thursday that helped you pin down the date when this happened? A. It was during the trial for Dick Wilson from the time he and some of his supporters had beaten up some of the workers for the Wounded Knee Committee, and they were on trial at that time, that's why Kathy was in town. Q. How did you travel from Oglala to Rapid City on Wednesday? A. In the committee car with Jeanette Eagle Hawk and Charlie Long Soldier. Q. When, do you remember when you arrived in Rapid City? A. We got here that night, and we probably went by the committee house, but then I went on to an apartment where Thelma Rios and her mother lived, because that's where Kathy was waiting for me. Q. Where was that located? A. It was an apartment, I think that is Maple Street very close to where the Mall is now. They used to be called the alphabet apartments because they had big letters on them. (Exhibit 38 marked For identification.) Q. I placed Exhibit 38 down there next to you which is an overhead photograph of Rapid City. I will ask you to look at JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 307 that. Can you identify where those apartments are on that photograph? A. It will take a minute to get my bearings. I think it must be these down in the corner. Q. The upper right-hand corner? A. Yes. MR. MANDEL: I offer Exhibit 38 at this time. MR. RENSCH: No objection. THE COURT: Exhibit 38 is received. BY MR. MANDEL: Q. When you arrived at -- was this Thelma's apartment, or her mother's apartment? A. I think it was her mother's apartment, and Thelma was in the process of moving in to live with her mother. Q. Thelma also have an apartment of her own? A. She had had a house over on Milwaukee, and she may have later had her own apartment, but I don't think she had her own apartment then. I don't know, I just saw her at her mother's. Q. What time in the evening was it when you arrived at the apartment? A. Oh, I would say maybe early evening, maybe some time between 6:30 and 8:00. Q. When you arrived who was present? A. You know, I remember being there and I remember sitting at the table visiting with Thelma and Kathy, but I don't have JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 308 a real sharp recollection of getting there or what happened when I arrived. Q. Did anybody else arrive at the apartment after you got there that evening? A. Yes, much later in the evening when Thelma and Kathy and I were sitting there visiting Dave Hill came in. Q. Who is Dave Hill? A. He had formerly been, he and Thelma had formerly been together as a couple, and he had, he was an active member of AIM. Q. What happened when Dave Hill arrived, if you recall? A. He just walked in, and we all said hello, and shortly after that he sat down, and shortly after that Kathy and I went upstairs. Q. Did you go to bed then? A. Yes. Q. What happened then the next morning? A. The next morning before we had gotten up, very early, I heard somebody come in downstairs, and I heard Bruce Ellison's voice saying -- MR. RENSCH: Objection, hearsay. THE COURT: Sustained. BY MR. MANDEL: Q. Well, you see Bruce Ellison that morning? A. Later that morning I did. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 309 Q. When he was there at the house did you see him? A. No, but I recognized his voice. Q. You heard him speak? A. Yes. Q. After he spoke, can you tell me what took place? A. Well, I didn't leave my room, but shortly after that I heard people leave downstairs. Q. You know who left? A. Well, Thelma wasn't there when I got up, so I assume she left with Bruce. Q. About what time in the morning did you get up? A. Probably about 8:00 or 8:30. Q. Did you head over to the WKLDOC house at some point? A. Yes, Charlie and Jeanette picked me up and took me over there. Q. When you arrived there -- first of all, about what time of day was that? A. It was probably late morning, maybe ten, ten or eleven o'clock. Q. What was your purpose in going over there? A. I was to wait there for my ride to Sioux Falls, and I had understood that it would be late in the morning or early in the afternoon when we would leave. Q. When you arrived at the WKLDOC house who was present there that you saw initially? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 310 A. Initially I saw Bruce Ellison, and there was a young legal worker there that we all called Red, I think maybe his first name was Norman, I don't remember his last name, and Wesley Hollander were the people that I saw first. Q. Over the course of the day did you see some other individuals there? A. Yes, I did. I saw Anna Mae, I also saw in the course of the day Laurelie Means, Ted Means, Clyde Bellecourt, Madonna Gilbert, Thelma. I think that was all. Q. What did you observe taking place on that day? A. Well, all of them were in that front room that we identified earlier, and I would hear voices occasionally, but no distinct words, but they were all in there most of the day. I didn't go in there, but I saw all of them in that area when we were leaving later that night. Q. So who all, which of these people were actually in that front room during the course of the day? A. I don't know, because I never went in there. Q. Well, did you ever see people come out of there? A. When I came downstairs and we were getting ready to leave they all came out of that area. Q. All meaning? A. All the people I named. Q. Did you at some point in the day see Anna Mae Aquash? A. I did. I was upstairs probably most of the day, and JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 311 to 325 PAGE 311 once when I came down into the kitchen area she was in there getting a cup of coffee. Q. Can you tell us what you observed about her at that time? A. Since the last time I had seen her she had cut her hair and there were tears in her eyes, she had been crying. Q. Did she appear distraught? A. She appeared very unhappy. Q. Did you have a conversation with her? A. Yes, I greeted her, and we exchanged sort of greetings. And then I said to her that it, as strange as it might seem, that she really, that people in Oglala really missed her and that I did, and that strange as it might seem, that Oglala could be a really safe place for her to stay. And she said well, I don't think I will get to, or I don't think I will, something to that effect. Q. What happened then? A. We talked maybe another less than a minute probably, and she said, well, I have to go back in there now, and went back to that front room. Q. Did you hear anything of the conversation that was going on in there? A. No. I could hear voices, but I didn't hear any of the conversation. Q. Did you see her leave the WKLDOC house? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 312 A. No. Q. When did you leave? A. It was after dark in December, must have been 5:00 or 5:30 that we left. Q. What did you do next? A. I got in the car with Ted Means, Clyde Bellecourt, Web Poor Bear was there, and another man I didn't know and still don't know who he was, and we were on our way to Sioux Falls, but we stopped in Rosebud on the way at Bill Means' house. Q. Can you just point, stand up and point if you would to where Thelma's apartment was on this roughly? A. It is this apartment complex, and this is reversed from the way it looks, but it was over in here. Q. Can you point about where the WKLDOC office was on here? I told you Allen Street was about there, would that help you? A. Yes. It was back in the second block off of Main. This is before. Q. Before the flood. A. Right in here. (Indicating). Q. The lower left-hand corner of Exhibit 38? A. Yes. Q. Thank you. Does that photograph show Anna Mae about as she looked on that day? A. Yes. Q. She had her hair cut short? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 313 A. Yes. THE COURT: That's Exhibit what, counsel? MR. MANDEL: Exhibit 27, Your Honor. BY MR. MANDEL: Q. After leaving the -- first of all, when you left the WKLDOC office, did a ride arrive for you, or how did that take place? A. I was upstairs and somebody just yelled Candy, we are ready, and I came down. And about that time all these people came out of that front room. Q. Who did you leave with? A. With Clyde Bellecourt, Ted Means, Web Poor Bear and a guy I didn't know. Q. When they came out of that front room, just so I understand, first of all did Anna Mae come out at that time? A. I didn't see her then. Q. Laurelie Decora? A. Yes. Q. Did you say Madonna Gilbert? A. Yes. Q. Bruce Ellison? A. Yes. Q. Thelma Rios? A. Yes. Q. Anybody else? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 314 A. Did you say Clyde? Q. Clyde Bellecourt? A. I think that's all. Q. So then you left with Clyde Bellecourt, Webster Poor Bear and Ted Means you said? A. Um-hum. Q. I have to ask you to answer yes or no? A. Yes. Q. Did you say Ted Means was in the room too, or no? A. He was in the group that came out when I came after I got downstairs. Q. And then where did you head to from the WKLDOC office? A. We were on our way to Sioux Falls. We went through Rosebud and stopped at Bill Means' house. Q. Bill Means also known by the nickname Kill? A. Yes. Q. What happened when you got to his house? A. Everybody got out. Nobody said anything to me about coming in, so I just stayed in the car and everybody else went inside. Q. Was there any discussion of what they were doing there? A. No. Q. Did you know why they went in there? A. Pardon me? Q. Did you know why they went in the house? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 315 A. No, I had no idea. I thought maybe they stopped to see Kill. Q. Was there any discussion of Anna Mae on the way from Rapid City over to Rosebud? A. No. I don't think anybody said a word the whole way. Q. A long ride without saying anything. A. Yes. Q. How long were you there at Kill's place in Rosebud? A. Well, I didn't time it, but it was probably more than ten minutes, less than 45. Q. Then what happened? A. They came back out, Ted and Clyde came back out and we drove on to Sioux Falls. Q. You testified at Russ's trial there? A. The next day, yes. Q. That would have been a Friday? A. Yes. Q. After that when did you first hear of the death of Anna Mae Pictou-Aquash? A. I heard it on the radio after the official announcement came out. Q. Shortly after the body was found? A. No, it was in February -- well, I guess it was maybe two weeks between the time we heard that the body of an unknown woman was found, and then about I don't know, ten days, two JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 316 weeks later they announced that it was Anna Mae. Q. After you found out who it was, did you ever have any discussions with anybody about it? A. Well, with a great many people. It has been a constant topic of conversation for 28 years. We have wondered exactly what happened. As far as with any of the people mentioned in my testimony, some time later, I don't remember whether it was before or after we knew Anna Mae was killed, I asked Madonna what became of her after they talked to her, and she said oh, we just told her to get out of there. Q. Madonna Gilbert? A. Yes. Otherwise with other people, we have been trying to figure this out for years. Q. When you saw Anna Mae there at WKLDOC that day, were you surprised to see her? A. Yes. Well, not when I saw her, I was surprised, I had heard earlier that morning -- MR. RENSCH: Objection, hearsay. THE COURT: Excuse me, what? MR. RENSCH: Hearsay. THE COURT: Not yet, but maybe. Overruled. A. When I heard Bruce Ellison at Thelma's, I heard him say MR. RENSCH: Objection. THE COURT: Sustained. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 317 MR. MANDEL: Your Honor, can we approach on this for a moment? THE COURT: You may. (Bench Conference). MR. MANDEL: Frankly, my read on this is that this is a coconspirator statement made in the furtherance of the course of the conspiracy. I know we don't have a conspiracy charge, that's not the rule of evidence, and in fact I point out that Mr. Ellison, according to Mr. Rensch, said he is going to exercise his 5th Amendment rights and won't testify here, and we have had the same experience we had with the grand jury regarding this on a number of occasions. Mr. Rensch of course has received the transcript through discovery, he's exercised his 5th Amendment right. He is a coconspirator, it is a coconspirator's statement made in the furtherance and course of the conspiracy. The statement is simply that, you know, she's here, they have her here in town, something like that. THE COURT: I want to hear argument on this, because this is news to me. The conspirators, because if so, the rules of evidence change when you have a coconspirator, but I want to hear argument. MR. RENSCH: Also want to say I don't think I have gotten Bruce Ellison's grand jury stuff. I mean I have broken this big bunch of documents I have down in the file, and it's JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 318 possible for me to misplace something, but I have looked and I don't think I have got that. It would be our position that he is not a coconspirator. This would be an effort simply to get this in front of the jury for the truth of the matter asserted. As it is going to turn out she has already testified that she saw Ms. Pictou-Aquash at the Wounded Knee Legal Defense-Offense Committee house, and from that standpoint I don't know if it would be worth injecting that type of error in this record when it is, well, it could turn out to be a non-issue. But to throw Bruce Ellison in to this mix and now call him a coconspirator, and then allow that information in on this new theory that we have now heard, we have not heard before, I think would work an injustice and I think it is in violation of the rules of evidence. MR. MANDEL: I don't think it's in violation of the rules of evidence, but frankly I don't want to hold things up, so I am going to drop it for that reason. THE COURT: Alright. (End Bench Conference). THE COURT: Ask your next question. MR. MANDEL: Nothing further, Your Honor. CROSS EXAMINATION BY MR. RENSCH: Q. Morning, Ma'am. If I ask you a question that seems confusing, would you stop me so nobody gets confused? A. Yes. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 319 Q. What is your educational background? A. I have a undergraduate degree in English from Auburn University, and a Masters Degree from the University of South Dakota in English. Q. You didn't grow up around these parts, did you? A. No. Q. Where did you grow up? A. Chattanooga, Tennessee. Q. You were a reporter by trade, weren't you? A. Yes. Q. So do you think you have sharpened your ability to look at events and kind of try to remember the details of them? A. Yes. Q. And you were trained as a reporter back in December of 1975, were you not? A. I wasn't trained then, but that had been my career through all those years. Q. You had been a reporter by then? A. Yes. Q. And Ms. Pictou-Aquash was a friend of yours, wasn't she? A. Yes. Q. You offered to let her come and basically stay with you, didn't you? A. Yes. Q. You would have let her stay in your house? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 320 A. Yes. Q. So before this day in December of 1975 you knew her well? A. Yes. Q. You knew that she was subject to rumors of being an informant, did you not? A. Yes. Q. You heard an individual by the name of John Stewart say that she was an informant, isn't that true? A. I think so, yes. Q. Who was John Stewart? A. He was a man who lived in Oglala. He was from Rosebud originally, but he was living in Oglala, and he turned out to be an FBI informer. Q. Where were you when you heard this FBI informant say that Ms. Pictou-Aquash was an informant? A. Probably at a meeting in somebody's house in Oglala. It wasn't just a personal conversation. Q. When would that have been? A. Probably around October, November. October probably, of '75. Q. So you have heard this FBI informant say this about Ms. Pictou-Aquash before you saw her there at the law office that day? A. Yes. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 321 Q. Now that Wounded Knee Legal Offense-Defense Committee house was a law office, wasn't it? A. The lawyers probably did some of their legal work there, yes. Q. Did you have a position with that committee at that time? A. Well, as I said earlier, I was really with the Oglala Legal Committee, and we were somewhat separate. Q. What was your job? A. By then I was actually the only member of the, who had originally been with the Wounded Knee Committee in Oglala, and I worked with Charlie Long Soldier and Jeanette on the Oglala Legal Committee. We did some media work to try to get the story out about what was happening on the reservation. We tried to help people who were constantly being harassed by the FBI, and we worked with people, many people were getting arrested at that time, or threatened with arrest, and we tried to help all of them that we could. Q. But you actually worked under some people who were at the Wounded Knee Legal Offense-Defense Committee house, didn't you? A. No. Q. Did you ever do any work up there at all? A. I was there occasionally, and may have done work while I was there, but I wasn't there much. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, tt305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 322 Q. You showed up, or we looked at the pictures of the house. Was the kitchen on the front of the house or the back of the house? A. You walked in to sort of the back porch sort of area and then straight in to the kitchen. Q. See the back of the house there on your screen? A. Yes. Q. Was that the area where you walked in to the kitchen? A. Well, you went through a little room, sort of a, I don't know, shed-like, before you were actually in to the kitchen. Q. Take a look at that picture, is that the shed-like room you are talking about? A. Yes. Q. How many feet would the kitchen be from that door right there would you say; are we talking ten feet? A. Oh, no. Probably like three or four steps. Q. Three or four steps. So the kitchen was close to the back door? A. Yes. Q. The back door was visible from the kitchen? A. Yes. Q. Was this little room a part of the kitchen? I mean was the wall pushed out so that is a part of the kitchen? A. No, it was more like a shed than a room. Q. When you were in the kitchen, Ms. Pictou-Aquash was JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 323 getting some coffee, is that right? A. Yes. Q. Who else was in the kitchen at that time? A. Just the two of us. Q. How many telephones were there in this house? A. Gee, I don't know, probably a couple downstairs and maybe one upstairs, maybe two upstairs. Q. How long did you talk to Ms. Pictou-Aquash? A. Probably not more than three or four minutes. Q. Did anybody come in to the kitchen during the course of your conversation? A. No. Q. You offered Ms. Pictou-Aquash a place to go, didn't you? A. Um-hum. Q. And at first you said that she said I don't think I will get to, and then you said you weren't sure, but she may have said I don't think I will? A. It was just an indication that she didn't, she probably couldn't do that, or wouldn't do that. Q. I am trying to get to -- A. I don't remember the exact words 28 years later. Q. Sure. It is possible she could have just simply said I don't think I will? A. Something like that. Q. She didn't ask you to help her in any way, did she? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 324 A. No. Q. She didn't ask you to call the police? A. No. Q. She didn't say to you that people were trying to kill her? A. No. Q. And as you spoke to her in the kitchen that day, you never dreamed that anything would happen that would result in her death, would you agree? A. That's right. Q. As you came to the house that day, about what time did you get there? A. I would say it was late morning. I can't be any more specific. Q. And what rooms are in the upstairs of this house? A. What rooms are in the upstairs? Q. Yes. A. Oh, I think there was maybe two. There was sort of a landing area at that time that was set up with a desk and phone and stuff, and then I believe there was at least one other room behind it, and there might have been one more smaller room. Q. Incidentally, was there a phone in the kitchen? A. No. Well, I don't think so, no. Q. Now when you were upstairs could you see what was JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 325 happening downstairs? A. No. Q. When you were upstairs could you hear what was happening downstairs? A. I could hear voices, I never heard any distinct words. Q. Could you identify whose voices you could hear? A. They weren't that loud, no. Q. So how long were you upstairs? A. The better part of the day. Q. You don't know who came in and out of that room because you were upstairs, would you agree? A. No, I know who came out when I left. Q. But you don't know who went in or who went out in the meantime, do you? A. No. Q. When you drive with these people down to Rosebud to the Bill Means' residence you are telling the jury that nobody said a word? A. I don't remember any conversation significant enough to know what anybody said. Q. Kind of hard to remember what people say 28 years later, isn't it? A. Well, if it is just general conversation. Q. You don't know the purpose of the stop at the Bill Means' house, do you agree? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Palls, South Dakota 57104 (605) 330-4877 Index PAGES 326 to 340 PAGE 326 A. That's right. Q. Could have been stopping to get something to eat? A. I think if it had been that, I knew Ted fairly well, I knew Web, I think if it had been something like that they would have said Candy, you better come in and eat, you better come in and get a cup of coffee, if it had been that casual. Q. Even if they didn't talk to you on the way down? A. Sure. I mean they may have talked among themselves. Q. Well, the reality of it is you don't have the slightest idea what happened in that house, would you agree? A. That's right. MR. RENSCH: Nothing further, thank you. MR. MANDEL: Nothing. THE COURT: You may step down. MR. McMAHON: Call Jeanette Eagle Hawk. JEANETTE EAGLE HAWK, called as a witness, being first duly sworn, testified and said as follows: DIRECT EXAMINATION BY MR. McMAHON: Q. Would you tell the jury your name, please? A. Jeanette Eagle Hawk. Q. Where do you live? A. I live in Manderson, South Dakota. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 327 Q. I am going to take you back a ways, back into the seventies. Can you tell me where you were living then? A. Back in the seventies I was living, I was working as a legal worker in Oglala, South Dakota. Q. Who were you working as a legal worker for? A. The Wounded Knee Legal Defense-Offense Committee. Q. What is your employment now? A. I work for the Oglala Sioux Tribe. Q. In what capacity? A. I am the community relations person for the tribe. Q. What type of work did you do for what is -- that's known as WKLDOC, isn't it? A. Yes. Q. What type of work did you do for them? A. I work basically as a legal worker. Whenever they called us we would go out and interview people and take their statements. Q. And you were based out of Oglala? A. Yes. Q. Did you actually have an office down there? A. Well, it was, yeah, it was a house. It was a house, but there was a office there. Q. Who did you work with? A. I worked with Candy Hamilton, Charlie Long Soldier. There was various other people, but I don't know their last JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 328 name. Q. Did you know Arlo Looking Cloud? A. I know Arlo. He was, they had a relationship, him and a friend of mine, and that's how I know him. Q. Were you active in the American Indian Movement? A. Yes, I was. Q. Did you ever see Mr. Looking Cloud at any of those events? A. Well, I have seen Arlo, but I haven't personally know him or spoke with him. You know, I wasn't, you know, I just seen him around. Q. So you just saw him at some of the events, but you didn't really speak with him? A. Yes. Q. I want to call your attention to December of 1975, particularly around December 10th. Did you have an occasion to go to the WKLDOC office in Rapid City? A. Yes. Q. And why were you going there? A. Well, the reason why we went there was whenever we go out and we do interviews with people, we take their statements down, we usually bring them up to Rapid City to the office up here. Q. Was that more of a main office? A. Yes. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 329 Q. And did anyone travel with you? A. Yes. Q. Who was that? A. Candy Hamilton and Charlie Long Soldier. Q. Do you remember, did you go to the WKLDOC office then in Rapid City? A. Yes. Q. I have put up Exhibit 35. That has been identified as showing at the back of the WKLDOC office. Do you recognize that? A. Yes. Q. When you went to the office on December 10th of '75, approximately what time of the day did you arrive? A. It was in the evening, late evening when it was dark. don't know the time, but it was dark. Q. Which door did you go in? A. We went in through the kitchen door, which was in the back. Q. So is that the door that we see there? A. Yes. Q. Who went into the house? A. Well, basically it was all three of us that went in, but it was Candy and Charlie that went in first, and I was kind o going in last. Q. When you come in the back of the house, what is the JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 330 first room that you get in to there? A. There was a crawl space. There wasn't, you know, it wasn't a small crawl space, but an area you go in through the back door and it was right there, and then on the side was the kitchen. Q. Where did you go? A. When I walked in I went in through the kitchen, in the kitchen. I went into the kitchen, and it was all dark in there. The lights were turned off. Q. Did you go any further into the house? A. No. Q. Why not? A. We were informed that we weren't supposed to go into the other parts of the house. Q. Had you ever been prevented from going in to other areas of the house prior to that? A. No. Q. So what did you do then? A. Well, I stayed in the kitchen, because we weren't allowed to go into the other areas of the house. Q. Did you see anybody else walking around in the kitchen or the other areas? A. Well, there was people in the kitchen, but I don't know, I can't remember who they were. But when I went in, when I peeked into the other room, which was a larger room past the JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 331 kitchen, I seen people in there. Q. Do you remember who any of them were? A. Yes. Q. Who? A. I saw Thelma. Q. Thelma who? A. Thelma Connor. Q. Also known as Thelma Rios? A. Yes. And I seen Bruce Ellison, and I seen Clyde. Q. Clyde who? A. Bellecourt. Q. Okay? A. I also seen Laurelie and Ted, and I also seen several legal workers. Q. When you say Laurelie and Ted, are you talking about Laurelie and Ted Means? A. Yes. Q. Did you stay at that house that evening? A. Yes. Q. Where did you stay? A. We stayed in the kitchen area in the small crawl space, we slept back there. Q. Who slept back in that small crawl space? A. Me and my son. Q. Were you ever allowed that evening to go beyond the JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 332 kitchen space? A. Just for a little while. Q. When you did that, did you see anyone other than who you have already identified? A. No. Q. Did you see, ever have an opportunity to see if Anna Mae Aquash was there? A. No, I never knew, but later on that night Charlie Long Soldier told me that -- MR. RENSCH: Objection, hearsay. THE COURT: Sustained. BY MR. McMAHON: Q. The following day did you leave the WKLDOC office? A. Yes. Q. Where did you go to? A. We went back to Oglala. Q. At any time did anybody talk to you about what was going on there at the house the prior evening? MR. RENSCH: Same objection, Your Honor. THE COURT: Overruled. BY MR. McMAHON: Q. You can answer that yes or no. A. What was it again? Q. At any time did anybody tell you what was going on at that house the prior evening? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 333 A. Later on, yes. Q. Later on that day, or later on after you had left? A. Later on that same night. Q. And was that the conversation you were going to relate that Charlie Long Soldier told you? A. Yes. MR. McMAHON: That's all I have at this time. Your Honor. THE COURT: Cross. MR. RENSCH: I have no questions. THE COURT: Thank you, Ma'am, you may step down. Well, is your next witness short or long? MR. MANDEL: Guessing about fifteen, twenty minutes THE COURT: Call your next witness then. MR. MANDEL: United States would call Cleo Gates, Your Honor. CLEO GATES, called as a witness, being first duly sworn, testified and said as follows: DIRECT EXAMINATION BY MR. MANDEL: Q. State your name, please? A. Cleo Gates. Q. Where do you live? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, tt305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 334 A. I live in Manderson, South Dakota. Q. What do you do down there? A. I work at the school, I am the payroll accountant. Q. How long have you been working there? A. About eight years. Q. You lived on the Pine Ridge Reservation all your life? A. Yes, I have. Q. Back in 1975 where were you living? A. Allen, South Dakota. Q. Who were you living with at that time? A. With my husband. Q. Who was that? A. Dick Marshal. Q. How long had the two of you been married? A. Oh, geez. Probably about six years then. Q. How long did you remain married? A. We remained married about four years after that. Q. Were you living in the housing area there in Allen? A. Yes, we were. Q. Was anybody else living in the house with you at that time? A. Our children. Q. How many kids did you have back then? A. Two. Q. How old? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 335 A. I think eight and five. Eight or nine, something like that. Q. Was that a period of time when Dick got in to some trouble? A. Yes. Q. Can you just tell us briefly what kind of trouble he got involved in at that time? MR. RENSCH: Objection, relevance and 403, Your Honor, and can we approach? THE COURT: You may. (Bench Conference). MR. RENSCH: He is going to get in to some matters where Dick Marshal was charged with murder as result of a shooting that occurred in the Scenic bar. He defended the case on the theory of self defense. Our position referring in any way to the fact that her husband was charged with a murder would be more prejudicial than probative, and doesn't have any place, and would make it appear as though this defendant is going over to a person's house who later was convicted of murder. From that standpoint it is very prejudicial, I object to it. THE COURT: What's the relevance, if that is what you are going in to? MR. MANDEL: Probably not going to much detail on it other than that it happened in the same time period, that that JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 336 is ultimately why they got divorced, just background. Frankly, I am not going into the details of the shooting or his -- THE COURT: What does the shooting have to do with anything? MR. MANDEL: I said I don't intend to go in to anything. THE COURT: Without going in to it then it is a moot issue. MR. RENSCH: I am afraid the witness will slip and say something about that. The way the questions are being broadly framed she could do that. If the prosecutor could instruct her not to bring that up, I would appreciate it, and I would request it. THE COURT: I think you can frame the questions so you don't get in to it, alright. MR. MANDEL: Okay. (End Bench Conference). BY MR. MANDEL: Q. I want to draw your attention to early December to mid December of 1975. Were you and Dick both together at home at that time? A. Yes. Q. Do you remember a night when some people came to your house? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 337 A. Yes, I do. Q. Particularly do you remember a night when Anna Mae Aquash arrived at your house? A. Yes, they told me that the girl was Anna Mae Aquash. Q. Prior to that time you didn't know her? A. No, I didn't. Q. Can you tell us first of all who arrived at your house and when they arrived? A. I think it was before midnight, it was after 11:00, we had gone to bed, and it was Theda Clark, Arlo, and John Boy is what I knew them by. Q. Was Theda somebody you had known for a long time? A. I had known Theda like probably three or four years before that. Q. What about John Boy? A. I knew him in passing. I had seen him at different activities, pow-wow's or whatever, and that's how I knew him. Q. Do you recognize him seated here in the courtroom today A. Oh, geez. I don't know, he was a young, really young at the time. Q. Anyhow, and what about John Boy, how did you know him? A. I thought you asked me already about John Boy. Q. I am sorry, Arlo you said? A. I knew Arlo through my brother. My brother Joe Morgan. I knew Arlo was from Wounded Knee, about nine miles from where JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 338 I live, but I didn't know him growing up, I just knew him from my brother Joe. Q. And if I misspoke before, let me ask you, do you recognize Arlo seated here in the courtroom today? A. That's Arlo. I recognize Arlo. Q. Can you tell us where he is seated and what he is wearing? A. Arlo is seated right there. MR. MANDEL: I ask the record reflect the witness pointed to the defendant. THE COURT: It may. BY MR. MANDEL: Q. When they came over what took place? A. They came in and they brought the girl in, and she sat on the chair in the living room, and they went into the bedroom with my husband. Q. They meaning who? A. Arlo, John and Theda. Q. Anna Mae stayed out with you? A. Yes, she did. Q. Can you tell us anything about what you noticed about her at that time? A. Well, she was real quiet. I asked her if she wanted coffee, because we, there was food and I thought maybe she might be hungry. She had a cup of coffee I think, and she JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 339 might have ate a donut and that was it, and she didn't offer any conversation. Actually I didn't know her, so I wasn't really sure what to say to her myself. Q. Did you notice what she was wearing? A. It was cold out and she had a jacket on and I would say it was like a knee length, it was a light colored jacket, but I didn't notice the clothing that she was wearing. Q. I am going to show you what's been marked Exhibit 4 and ask you to take a look at that. Are you able to recognize any of her clothing in that photograph? A. No, I don't. Q. You just don't recall? A. She doesn't have the jacket on. It was like a warm jacket that she had on, a heavy jacket. Q. Was there some request made of you and Dick that evening by these people? A. Well, they came in and they went, they came out of the bedroom and called me in the kitchen and he said they want us to keep her here. Q. Who said that? A. Dick. I said what for? I don't know, just keep her here. And I said no. Q. You refused to allow them to do that? A. Right. Q. How come? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 340 A. Because I had, this was Anna Mae, and I had heard just different things going on on the reservation, and I didn't want to be any part of it. Q. What kind of different things were you aware of? A. Well, people were saying that Anna Mae was an informer. I never knew her myself, so I didn't, wasn't sure. So I just told Dick no, I said I don't think we should. Q. Were you and Dick both AIM members at the time? A. Yes, we were. Q. What happened when you refused to keep her there? A. Dick went back and told them and they left. They weren't there very long. Q. About how long altogether? A. I would say maybe a half hour maybe. Q. They say anything about where they were going? A. No, they didn't, not to me. MR. MANDEL: No further questions. Your Honor. THE COURT: You may cross examine. CROSS EXAMINATION BY MR. RENSCH: Q. Morning, Ma'am. A. Good morning. Q. You knew Theda before that date, did you not? A. Yeah, I knew Theda, who she was. Q. I think you testified at your grand jury she was kind of pushy? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 341 to 355 PAGE 341 A. Theda was that type of person. Q. How so? A. They didn't want me to go in the bedroom with them, they just took Dick. Q. I am talking how is she a pushy person? A. Just takes control of the situation. Q. About that time how old did she appear to be, thirties, forties, fifties? A. Probably forties, fifties. Close to fifty maybe. Q. She was older than the others that were with her? A. Right, much older. Q. Was there a phone at your residence in '75? A. Yes, we had a phone. Q. Did Ms. Pictou-Aquash ask to use your phone? A. No, she didn't. Q. If she would have asked, would you have let her? A. I think I would have. Q. So there was a period of time when you were out in your living room or kitchen area alone with Ms. Pictou-Aquash? A. Right. Q. About how long would you say that was? A. Probably five minutes maybe. Q. Cars outside the house? A. You know, I didn't look out. Q. Did you folks have a car then? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 342 A. Yes, we did. Q. Did the people who came in give you any indication that they had walked? A. No, they didn't. Q. And no one was standing guard over Ms. Pictou-Aquash as she was with you? A. No, they weren't. Q. You never dreamed that when she left that house anything bad would happen to her, did you? A. No, I didn't, sir. Q. If you would have thought something bad was going to happen, would you have tried to help her? A. I think I would have. MR. RENSCH: Thank you. REDIRECT EXAMINATION BY MR. MANDEL: Q. You said you weren't allowed to go back in the bedroom when they were there? A. Well, they said stay out here, they took Dick back there. Q. Do you know, did your husband Dick give them anything when they were back in that bedroom? A. I don't think he did. Q. Did he keep any guns in that bedroom? A. No. At the time he had, he had gotten in trouble and wasn't allowed to have any kind of guns. He was on release JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 343 before his trial. MR. RENSCH: Okay -- well -- BY MR. MANDEL: Q. Had he had guns in the past? A. We had a rifle, hunting rifles, but he had taken everything over to his dad's, mother and dad's place. MR. MANDEL: Nothing further, Your Honor. MR. RENSCH: No questions. THE COURT: Thank you. You may step down. Now we will take our morning recess. Remember what I told you before, don't talk to each other about the case, keep an open mind until you have heard all of the evidence. We will be in recess for fifteen minutes. (Recess at 10:30 until 10:45). THE COURT: Call your next witness. MR. McMAHON: Richard Two Elk. RICHARD TWO ELK, called as a witness, being first duly sworn, testified and said as follows: DIRECT EXAMINATION BY MR. McMAHON: Q. State your name, please? A. My name is Richard Two Elk. Q. Where do you live? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, tt305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 344 A. I live in Denver, Colorado. Q. How long have you lived there? A. I have lived there off and on since about 1959. Q. How old are you? A. I am 49 years old. Q. Where were you born? A. I was born in Rapid City. Q. Where did you grow up? A. All over the country. Q. Did you spend any time on any of the reservations in South Dakota? A. Yes, I did. Q. During what years would that have been? A. From my birth to the present I have spent a lot of time on Pine Ridge. Q. Did you graduate from high school? A. No. Q. Did you spend any time in the military? A. Yes. Q. When were you in the military? A. I was in the military from 1983 to 1987. Q. What did you do prior to being in the military? A. Prior to being in the military I was a Native American educator and journalist. Q. What is your present occupation? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 345 A. My present occupation is educational consultant. Q. What do you do as an educational consultant? A. I do presentations in public schools, I conduct medical training and orienteering. Q. Were you a member of AIM? A. I was a member of AIM. Q. During approximately what years were you a member of the AIM organization? A. From approximately 1970 to about 1975, '76. Q. Where were you living during those years? A. I lived in Denver and in Iowa. Q. Do you know Mr. Arlo Looking Cloud? A. Yes. Q. You see him here in the courtroom? A. Yes. Q. Could you identify him, please? A. He is sitting right over there in that chair. MR. McMAHON: May the record reflect he identified the defendant? THE COURT: It may. BY MR. McMAHON: Q. How do you know Mr. Looking Cloud? A. We grew up together. Q. What do you mean you grew up together, can you explain that? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 346 A. When we were young people and we were growing up we spent a lot of time hanging around and just raising cain together. Q. Did you have any kind of special relationship with each other? A. I think special in that Arlo's father and my mother had a friendship, and a result we ended up being closer than most. I considered my special relationship with Arlo because I, unlike other people, I didn't have any fear of him. Q. You are not a blood relative of his, though, are you? A. No, I am not. Q. During what years as far as your age were you and Arlo running around together? A. Probably from the early to mid teens. Q. Then how long did you continue to keep each other's company? A. To the present. Q. So you have known him for a long time? A. Yes. Q. Did you spend a lot of time together? A. Not an excessive amount of time. Enough to where we maintained our relationship over the years. Q. Have you spent time with him in Denver? A. Yes. Q. Was Mr. Looking Cloud involved in the AIM movement? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 347 A. Yes. Q. Would it have been at the same time you were? A. Yes. Q. Did you go to AIM activities together? A. Yes, we did. Q. Could you describe what type of involvement the two of you had? A. Well, if there was an activity going on that was sponsored by the American Indian Movement such as a demonstration or a rally, or other sort of event, we would often go there and provide support. We would be present. So mostly just support for different activities that AIM did. Q. Were you living in Denver during your AIM involvement years? A. I lived in Denver and in Iowa. Q. How about Mr. Looking Cloud, where was he living then? A. Denver and South Dakota and -- Q. Were the two of you active in any particular chapter of AIM? A. The Denver chapter. Q. Do you know a person by the name of John Graham? A. Yes. Q. How do you know him? A. He was a friend of both Arlo and I. Q. When was that? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 348 A. In 1974 and "75 and '76. Q. So for three years? A. Around about that, it may have been '75 and '76. Q. Was he a friend of yours while you were in Denver? A. Yes. Q. Was he also involved in AIM activities? A. Yes. Q. Did the three of you ever do anything together? A. Well, we partied together, we made chokers together and would go out and sell those. Q. What do you mean chokers? A. They hair pipe chokers and Indian crafts, if you will. So we would go and would sell those, and just stuff like that. Q. Did the three of you, yourself, Mr. Looking Cloud and Mr. John Graham, do these things together? A. Often. Q. Often? A. Not all the time, but often. Q. You said that would have been in '74, '75 and '76? A. I would have to say '75 and '76 to be certain. Q. '75 and '76. Did you, the three of you hang around together prior to December of 1975? A. Yes. Q. Did you continue to hang around together after December of 1975? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 349 A. Yes. Q. Have you ever had an occasion to talk with Mr. Looking Cloud about Anna Mae Aquash's murder? A. Yes, I have. Q. When was the first time you visited with him about that? A. The first time that I visited with Arlo about the murder of Anna Mae Aquash is when he called me from the federal holding in 1994. Q. You mean he was in jail? A. Yes. Q. And he called you from jail? A. Yes. Q. What did he say to you? A. He explained to me that he was being held in reference to the Anna Mae investigation. He wanted to know if I could help him, because I had a military background and I had a good sense of the institutional processes. So he asked me for advice and what I thought should be done. Q. What did you tell him? A. I asked him if he had, was responsible for killing Anna Mae? And he said no. And so then I told him that if he needed to, then he should tell them the truth about as much as he could about his involvement, and then maybe he would get out of jail. Q. Did he get out of jail? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 350 A. He did. Q. Did the two of you have an occasion to visit about this again? A. Yes. Q. When would that have been? A. Well, we visited several times since he got out of jail to the present, since he was incarcerated last. Q. When would have the first have been after he got out of jail? A. I would say we didn't seriously start to explore the depths of it until mid to late 1990's, '96 and '97. Q. '96 and '97, somewhere in there? A. Yes, sir. Q. When was the last time you visited with Mr. Looking Cloud, about when this would have been? A. About two weeks prior to his arrest. Q. Let's start with your -- well, first of all, how many visits do you think you have had with him about this matter? A. I would say at least a half a dozen, if not more. Q. Let's start with the early visits. Tell me, if you would, what he told you about what happened to Anna Mae? MR. RENSCH: Objection, foundation. THE COURT: Sustained. BY MR. McMAHON: Q. When did you have this first visit then? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 351 A. Telephonic, or in person? Q. After that telephone visit? A. After he was released, when he was available, probably a year '95 I would say. Q. Who was present during this visit? A. Just Arlo and I. Q. Where did that visit take place? A. At his aunt's house. Q. Where is that? A. In Denver. Q. Just the two of you were present? A. Yes. Q. Did you ask him about what had happened to Anna Mae Aquash? A. Yes. I asked him about more of the particulars and the details of what I had been told initially. Q. Did the two of you then have a conversation about it? A. Yes. Q. Now at that time did you talk at all about him being at Yellow Wood's? A. Yes, I did. Q. What did he tell you about that? A. He told me was, that they were at Troy Lynn's when they received a call that said that they had to go to South Dakota. Q. You say they received a call, did he get any more JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 352 specific than that? A. No. Q. Did he say why they had to go to South Dakota? A. They had to go to South Dakota and take Anna Mae up there to respond to charges that she was an informer. Q. Did he tell you who was going to take her up there? A. He told me that he and John Boy and Theda were going to take her up there. Q. Did he tell you who made that telephone call? A. No. Q. Did he tell you where they went in South Dakota? A. Just to Rapid City. Q. Did he tell you what happened in Rapid City? A. What he told me was that in Rapid City they went to the interrogation, they were present for the interrogation, and they wanted to try to help Anna Mae respond to the charges effectively. Q. So he told you that he actually was trying to help Anna Mae respond to the charges? A. That was what he had told me, that was my understanding of it. Q. Was Mr. Graham helping also? MR. RENSCH: Objection, leading, Your Honor. THE COURT: Sustained. BY MR. McMAHON: JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 353 Q. Was anyone else helping? A. I am sorry? Q. Was anyone else helping Anna Mae respond to the charges? A. No. Q. Did he tell you where they were at in Rapid City? A. No. Q. Did he mention where they went when they left Rapid City? A. What he told me was after they left Rapid City they went out looking for somewhere to go to, and they went to Rosebud and Pine Ridge, and that was the best that I knew, driving around. Q. Did he tell you who made that trip to Rosebud and Pine Ridge? A. He told me that there was he and John Boy. Q. Was Theda Clark with them? A. Not that he said. Q. Did he tell you what they did on Rosebud or Pine Ridge? A. What he told me was that they went to Pine Ridge and they had, they were trying to find somewhere to go, and they stopped to, just to stop, and that's when the rest of the events started to happen. Q. Did he tell you exactly where they had stopped? A. No. Q. What did he tell you happened when they stopped? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 354 A. That they got out of the vehicle and -- Q. Let me stop you there a minute. You said they got out of the vehicle, who are you talking about? A. John Boy and Arlo and Anna Mae. Q. Go ahead then? A. That they had gotten out of the vehicle and they were going to go off the side of the road, and Arlo gave the gun to John Boy and nodded to him, and John Boy went off with Anna Mae. Q. You said that Arlo gave the gun to John Boy? A. That's what he told me. Q. When they were out at the site where Anna Mae was killed? A. Yes. Q. And then he told you what happened after that? A. What he told me was that he gave the gun to John Boy, and John Boy went off with Anna Mae, and that she had started to pray or to begin the process for prayer when John Boy just put the gun to her head and pulled the trigger. Q. You said you had a series of other conversations with Mr. Looking Cloud about this event, correct? A. Yes. Q. Where did you have those conversations? A. Different places. His aunt's house, my house, wherever we ran in to each other. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 355 Q. During those other conversations did his, did he relate the story to you again? A. I would have him review some of the particulars to measure them against what I had been told previously so that I could get a better sense of what I was being told, and so we did, we did visit the same story on several occasions. Q. Did he ever change any portion of his story? A. It would change often. Q. You think of any examples as to how it changed? MR. RENSCH: Objection, foundation. THE COURT: Overruled. A. The changes in the story would have to do with particulars of, say for example, trying to think of a particular one. Whether they went to Rosebud or not, as an example. BY MR. McMAHON: Q. Did Mr. Looking Cloud ever claim to you that he didn't know this was going to happen? A. He also, he had told me that, yes. Q. Was that before or after he told you that he was the one that actually handed the gun to John Boy? A. It was, well, both before and after. And on one occasion he would tell me that he didn't know what was going to happen until it happened, on another occasion he would tell me otherwise. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 356 to 370 PAGE 356 Q. Did you ever have an occasion to help Mr. Looking Cloud make contact with Anna Maes daughters? A. Yes, I did. Q. When was that? A. I believe it was within the past couple of years. I know it was since -- I got to say within the past couple of years the best I could say. Q. What was your involvement in that? A. My interest was that these two girls who were children at the time had their mother taken from them without any knowledge or understanding, and I felt that that was so wrong, that I felt that anybody who had any knowledge about what happened to their mother was obligated to inform them of that, and so I coordinated the conversation between Arlo and the girls. Q. Did you listen in on the conversation? A. No, I did not. Q. At any time during your conversations with Mr. Looking Cloud did he ever indicate to you when they received instructions as to killing Anna Mae? A. No. MR. McMAHON: Thank you, that's all I have. THE COURT: Cross examine. CROSS EXAMINATION BY MR. RENSCH: Q. How old are you, sir? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 357 A. I am sorry? Q. How old are you? A. I am 49 years old. Q. What is your job? A. I am an educational consultant. Q. What's that? A. I teach classes in public schools. Q. Have you taught any in the last month? A. Not in the last month. Q. When is the last class you taught in public school? A. About a month and a half ago. Q. Where was that? A. In Denver. Q. What school? A. I can't divulge. Q. You can't divulge the school you taught a class at? A. No, sir, I cannot, not unless it's particularly in reference to the case here. Q. Alright. You say that you lived between Denver and Iowa from 1972 to 1976, is that correct? A. Between 1972 to 1976 I lived in Denver and Iowa and South Dakota, yes. Q. When did you live in Iowa? A. I lived in Iowa different periods. 1970, 1971, 1973, and 1974. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 358 Q. When did you live in South Dakota? A. Oh, 1972, 1974, and 1975. Q. What year were you born, sir? A. 1954. Q. You have told this jury that you basically grew up with Arlo, is that right? A. Basically. Q. What does that mean to you, growing up with somebody? A. You know them when you are growing up. Q. When you say you grow up with someone, that means you are with them, what else does it mean to you? A. It means to me that we were growing up, we hung out together, did things together. Q. You lived in the same place? A. No. Q. Did you ever live in the same place as Arlo? A. On a few different occasions. Q. Where at? A. At Troy Lynn's. Q. You lived at Troy Lynn's? A. Yes, I lived at Troy Lynn's. Q. How long did you live there? A. Boy, I couldn't say for sure how long. Q. What years did you live there? A. 1973, 1971, 1972, different periods. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 359 Q. You have told people and made statements about Arlo that he is your brother, haven't you, sir? A. Yes. Q. You consider him a brother? A. Yes. Q. Here in the courtroom today? A. Yes. Q. There would be no reason at all for you to make anything up about him, right? A. Nope. Q. Because he is your brother and you wouldn't want to do anything to hurt your brother, right? A. No, I wouldn't want to do anything to hurt my brother. Q. How many times did you speak with him about Ms. Pictou-Aquash? A. I would say at least a half a dozen, maybe more. Q. Do you distinctly remember every conversation you had with him? A. Not enough to be able to separate them and itemize them. Q. You have also said that he has consistently told you what happened through the years, haven't you, sir? A. Yes. Q. What does the word consistently mean to you? A. I could quote Webster's definition, but I believe it should mean the same thing to both of us, it happens often. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 360 Q. Go ahead and quote whatever you would like, tell us what consistently means? A. It happens often, it stays the -- Q. It agrees with the same? A. It happens often the same. Q. In your quote of Webster's dictionary it means stays the same, doesn't it? A. I said I could quote the Webster's dictionary. Q. Well, quote it then? A. I don't. Consistent, you had asked me for a definition of the word consistency. Q. I asked you for the word consistency. You have said to people that Arlo Looking Cloud consistently told you the same thing over the years, have you not, sir? A. Yes. Q. If you say that someone consistently tells you the same thing over the years, that means their story isn't changing, doesn't it? A. No. Q. It doesn't. Tell us how someone can consistently say to you the same thing over the years and change their story? A. Well, we have a conversation about the same subject that happens more than once, we consistently have the same types of questions, same types of inquiries, we focus on the same object, but the answers are often different. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 361 Q. How can someone consistently say the same thing to you while saying something different? A. Because all the different answers are consistently the same. Q. All the different answers are consistently the same. That is what you are telling this jury? A. Yes. Q. You don't have a horse in this race, do you? A. I can't even comment to that. Q. You don't care how it turns out? A. It went over my head. Q. You don't care how this case turns out, do you? A. I am not sure, is that a question, or an assertion? Q. I am asking you, do you care how this case turns out? A. Okay, now that's a question. Q. Thank you? A. I care, yes. Q. You don't like the American Indian Movement, do you, sir? A. I couldn't say that. Q. You despise the leadership of the American Indian Movement, don't you, sir? A. I couldn't say that either. Q. Well, you have told other people that you don't like the leaders, have you not? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 362 A. Yes. Q. Who, do you have a blood brother, someone who is a blood brother to you? A. I have several blood brothers. Q. Who are your blood brothers, who are brothers that are brothers in the sense you come from the same mother and father? A. I don't know that. Q. Who are your brothers? A. Who are my brothers? I have to tell you that I could sit here and name my brothers, but I am trying to understand what the value it has to this case. Q. Well, you your understanding of the value it has to this case, sir, is not an answer to the question. Do you have any brothers that have the same last name as you? A. Yes. Q. Who are they? A. Aaron, Don, Roy, Bruce, Q. Two Elk, is that right? A. No. Q. Do you have a brother who has the same last name as you': A. Aaron Two Elk. Q. Aaron Two Elk. You are angry with the American Indian Movement because he was shut out of the American Indian Movement for a period of time, would you agree, sir? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 363 A. No. Q. You didn't try to intercede on his behalf and try to make amends between Aaron and the American Indian Movement? A. No. Q. The truth of the matter is, sir, you would do anything so that the American Indian Movement looks bad because you hate it, would you agree? A. No. Q. Well, are you a member of it presently? A. No. Q. When did you quit being a member? A. I stopped being an active member in the American Indian Movement, Incorporated in about 1975. Q. About 1975? What did you stop for? A. Because I didn't feel like being used any more. Q. When you think back on the telephone call that Arlo made where he talked to you, can you tell us what he told you happened? A. I am sorry, again? Q. Think to the first time you spoke to Arlo about the Anna Mae Pictou-Aquash matter, do you know when that was? A. Yes. Q. When? A. I believe it had to be in the summer or the fall of 1994. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 364 Q. How did he contact you? A. He called me by telephone. Q. What did he say to you? A. He wanted to know what I thought he should do. Q. Did you ask him if he had killed anyone? A. Yes. Q. What did he say to you? A. He said no, he hadn't. Q. And he never told you that he helped kill anyone at that point, did he? A. Well, he did tell me that. Q. He did tell you. What did he say to you about that? A. He said that he was involved in the case, and he wanted to know what he should do if he was involved in the case and they were holding him. And so I told him he needed to tell them as much as he could about the truth of his involvement. Q. I thought you said he helped with her killing? A. You asked me did he ever tell me that, and I said yes. Involvement in the case is to me helping with her killing. You may have a different interpretation. Q. I think we do. The first time he spoke to you, didn't you ask him if he had -- well, let's just get to your grand jury testimony. We will deal with it that way. You asked him did you commit the murder, and he said to you, no, did not, do you agree? JERRY J. MAY. RPR, CM 400 South Phillips Avenue, tt305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 365 A. I agree. Q. What else did he tell you in that first phone call after you asked him that question? A. As I said, he asked me what I thought he should do, because he was being held in reference to this case, and so I told him that he needed to just tell them the truth about his involvement. Q. Did he say anything else to you during that phone call? A. A lot of things. Q. Please tell us what else? A. I couldn't even begin to. Q. Why not? A. There was a pretty extensive conversation. Q. You can't remember? A. Not all the particulars. Q. What else do you remember? A. What I remember is that he called me and he wanted to know what to do. Q. And that he told you that he didn't kill anyone? A. He told me he didn't kill Anna Mae, and that he was involved and he wanted to know what to do. Q. After that telephone call he is seeking basically legal advice from you, is that what you are telling us? A. No, why would he seek legal advice from me, I am not a lawyer. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 366 Q. I think you are right there? A. Doesn't make any sense. MR. McMAHON: Your Honor, I ask that counsel be instructed to quit badgering the witness and just ask questions. THE COURT: This is cross examination. Ask your next question. BY MR. RENSCH: Q. After that telephone call how many person-to-person conversations did you have with Mr. Looking Cloud about Anna Mae Aquash's death? A. I would say at least a half a dozen, maybe more. Q. Where was the first one? A. At his aunt's house. Q. Who was present? A. Arlo and I. Q. Was his aunt there? A. She was inside. Q. When the prosecutor asked you who was present, you just said you and Arlo were there, didn't you? A. We were outside, Arlo and I. She was not present, that's what I said. Q. Let me ask you this. When the prosecutor asked you where this took place, you said at his aunt's house, didn't you? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 367 A. Yes. I guess I could have gotten a little more specific. We were outside and she was inside. Does that help? Q. What did he say and what did you say? A. You know, it was a pretty long conversation, pretty involved, a lot of discussion. I don't, I couldn't say. Q. You don't remember what he said, and you don't know what you said during that first person-to-person conversation about this death, is that right? A. I repeat, I couldn't say. Q. Tell me about the second conversation that you had that was after this first one, where did that take place? A. I couldn't even say. Q. Who was present? A. Arlo and I. Q. Where did it happen? A. I am sorry? Q. Where did it happen? A. Is that the same as where was it present, where did it take place, is that the same question? Q. It is? A. I couldn't even say. Q. Don't remember, what did you say and what did he say? A. I didn't say I couldn't remember, I said I couldn't even say. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 368 Q. What does that mean to you, sir? A. What it means is we had many conversations over a long period of time. I didn't log them or document them in writing as such as an incident report. That many of these conversations took place possibly when we were driving, possibly when we were at my house, possibly when we ran in to each other, and so because of the nature of it there are no particulars on conversation one, conversation two, conversation three, et cetera. Q. I asked you if you knew where the second conversation took place, you said that you couldn't say, and my question to you is do you remember, yes or no? A. Yes. Q. Where did it take place then the second conversation? A. In my car. Q. It did. Now it's in your car. Why didn't you tell us it was in your car when I first asked you the question? A. Well, because you wanted to know where was the second conversation, and I had to think about it, where was the second conversation. Q. So now you remember the second conversation was in your car, is that right? A. Well, I will tell you that the second conversation was in my car, if that's what you want to hear. Q. You know, sir, I don't think we are in this courtroom to JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 369 try to get just what we want to hear. My question to you is simple. Did the second conversation take place in the car, yes or no? A. The second conversation took place in my car. Q. And you remember that? A. I remember having a conversation in my car. Q. When was it? A. I don't remember. Q. Where was the car? A. Driving down the street in Denver. Q. Where at? A. Just driving down the street, you know. Q. You are making it up as you go, aren't you, sir? A. Well, okay, you know, let me explain this if I will. Q. My question to you? You are making this up as you go, aren't you, sir, yes or no? A. No. Q. Where was the third conversation? A. The first conversation took place outside his aunt's house. Q. I am asking where the third conversation was, sir? A. The third conversation, I have to tell you I don't recall. Q. In that conversation what did he say and what did you say? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 370 A. In which conversation? Q. The third one? A. The third one? Q. Yes? A. We visited some of the same questions, and we disclosed some of the same areas in terms of the events that took place. Q. So what did he say and what did you say? A. I would ask him questions about the location, the time, the people that were there, and he would respond to the questions. Q. I know you are telling us that you would ask him questions and that he would respond. But I would ask you to listen closely to what I am asking. What did he say and what did you say? A. He said if anybody wanted to know what happened to Anna Mae and why, then they needed to talk to the leadership in the American Indian Movement. And I said I agree. And that was what conversation, sir. Q. The third one, where did that take place? A. Driving in Denver in my car. Q. I thought the second one was driving? A. No, the third one was driving. Q. Where was the second one? A. Driving. Q. They are all driving, aren't they? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 371 to 385 PAGE 371 A. What you don't understand, we had many conversations all over the place. As I said earlier, they took place many different times, they involved some of the same inquiries and some of the same responses. The responses would change, and sometimes they would be the same. Q. Well, that sounds like you talked to him a lot more than six times if you don't mind my saying. A. As I said, six times, possibly a dozen. Q. You said before this jury six times, possibly a dozen, is that what you are telling us, sir? A. That's what I recall. Q. You want to be a reporter, don't you, sir? A. No, I don't want to be a reporter. Q. You have been in contact with an individual by the name of Paul DeMain, have you not, sir? A. I know Paul DeMain, yes. Q. Who is he? A. He is editor of a newspaper, News From Indian country, or Indian Country News. Q. You would like to be a writer for him, wouldn't you? A. No. Q. He's paid you money, hasn't he? A. He has paid me money, he has bought some of the products that I have, CD's, what have you. Q. He has paid you to write stories for him, hasn't he? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 372 A. No. Q. Does he pay you in any way in connection with Arlo's case? A. No. Q. You ever received any moneys from anybody in connection with Arlo's case? A. No. Q. Here you are not testifying out of any ill will, you love this man, he is your brother? A. Yes. Q. You indicated that Mr. DeMain had purchased some products from you, you have a Web site on the internet, don't you, sir? A. Yes. Q. And you sell tapes of people who were involved in the American Indian Movement speaking about the movement, do you not? A. No. Q. Well, do you sell a tape by John Trudell? A. No. Q. You don't sell a tape where John Trudell's voice is on the tape at all? Please answer out loud, sir? A. No, I don't. Q. Who, which tapes, what do you sell? A. CD ' s . JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 373 Q. Of what? A. Of Native American speeches. Q. Native American speeches, okay. Don't you sell a CD of a speech that was a 1976 on the 4th of July by an individual named John Trudell? A. No, I don't. Q. Who makes that speech? A. I am sorry. Q. Who makes that speech? A. Who makes what speech? Q. The speech you sell by John Trudell? A. I don' t. Q. You in the '70's went around with a tape recorder and interviewed people about events, didn't you, sir? A. I carried, yes. Q. And you did that so you could record their oral history, didn't you, sir? A. No. Q. What did you do it for? A. So other people could hear what they had to say. Q. You have also worked at a radio station for a period of time in Denver, or in Colorado, have you not, sir? A. Yes. Q. What was the name of the radio station? A. KGNU. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 374 Q. What was your job there? A. I didn't have a job there. Q. I asked if you worked there, you said yes. What did do you there? A. I was a volunteer producer. Q. What is does a volunteer producer do? A. Produces programs for radio broadcasts. Q. You know how to edit tape recordings, don't you, sir? A. Yes. Q. You know how to tape record someone's voice if they are speaking, don't you, sir. A. Yes. Q. You have tape recording equipment, don't you, sir? A. Yes. Q. How much tape recording equipment do you have, sir? A. Cassette recorder, microphone, head phones, computer, that's about it. Q. You talked to Arlo many times about this case, didn't you, sir? A. Yes. Q. And you knew that it was, was the subject of a great deal of interest across these country, did you not? A. Yes. Q. Did you ever once tape record him talking about it? A. Nope. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 375 Q. Why not? A. Because he didn't want me to. Q. But you tape record the voices of other people to record what they say, don't you? A. Yes. Q. So that if someone wants to listen to what they say, they don't have to rely on your recollection, they can just hear their voices? A. Exactly. Q. What would be the importance of doing that? A. The importance of doing that would be that I could in no way ever attempt to paraphrase or repeat what other people have to say, that they their knowledge and their intelligence is original, and I would do them a great injustice by attempting to do so. Therefore I record their statements in and of themselves and let people listen for themselves. Q. In that sense, sir, then by trying to summarize what Mr. Looking Cloud has said you are doing him an injustice, would you agree? A. No. Q. Because you could in no way remember everything he said, could you? A. I am sorry. Q. Because you could in no way remember everything he said, could you? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 376 A. I guess I could say I agree. Q. Did Arlo tell you that it was a .38 pistol? A. Yes. Q. And that he is the one who had the gun and handed it to John Boy, that's what you are telling us? A. He told me that he handed the gun to John Boy. Q. How many times did he tell you that? A. Out of, using a percentage, I would say probably about sixty to seventy percent of the time. Q. What he really told you, sir, was he was going over to Troy Lynn's to meet Joe Morgan? A. I am sorry. Q. What he really told you was he was going over to Troy Lynn's to meet Joe Morgan that night, didn't he tell you that? A. No. Q. When he got there Theda asked him to drive to Rapid City, did he tell you that? A. No. Q. And when he got to Rapid City he stayed at an abandoned apartment, did he tell you that? A. No. Q. And that he went when he was in Rapid City and met up with a friend by the name of Tony Red Cloud, did he tell you that? A. No. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 377 Q. Never heard of the name Tony Red Cloud? A. I didn't say that. Q. Did you ever hear the name Tony Red Cloud from Arlo? A. I have heard the name, but I haven't heard it from Arlo. Q. And that they went down to Rosebud, he tell you that? A. No, he didn't tell me he went to Rosebud with Tony Red Cloud. Q. I didn't ask you if he went to Rosebud with Tony Red Cloud. A. You had a couple questions together, I couldn't differentiate. Q. Arlo told you he went to Rosebud, is that what you said? A. Yes. Q. This vehicle was stopped out on the road and John Boy took Ms. Pictou-Aquash out of the vehicle, he told you that, didn't he? A. No. Q. And Theda told him to follow, or John Boy told him to come along, he told you that, didn't he? A. I am sorry, your questions aren't really clear to me. Can you restate the last question? Q. What's unclear about the last question? A. I didn't understand it. Q. Did Arlo tell you that John Boy took Ms. Pictou-Aquash out of the vehicle? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 378 A. No. Q. And that John Boy then walked her up to the edge of an embankment, and either Theda or John Boy told Arlo to come along, he tell you that? A. No. Q. And that when Ms. Pictou-Aquash was executed it was a complete surprise to him, did he tell you that? A. He told me that. Q. He told you that when she was shot it was a complete surprise to him? A. Yes. Q. Why would it be a complete surprise to somebody that a person was shot if he supposedly is handing the other guy the gun? A. That depends on which time we had the conversation and which question, and how he changes in, his responses variate. Q. It does, and that's why I have asked you where these conversations have taken place, and what he said during these conversations. So now which conversation was it that he told you this was a surprise when Ms. Pictou-Aquash was killed? A. I couldn't say. Q. How many times did he say that to you? A. I would say about thirty to forty percent of the time. Q. Well, how many conversations are we talking about so we can get a sense of how many times? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 379 A. I think I stated earlier six, possibly a dozen. Q. And the last conversation you had with him was where? A. At my house in Denver. Q. Who was present? A. One of my sons might have been present. Q. What did Arlo say and what did you say? A. I think we are probably just talking about what was going to happen with this case, and if anything was going to develop and what have you. Q. Well, did he tell you anything about the event that night? A. No, not at this stage. Q. So this is one of the twelve conversations you are talking about? A. Or more. I mean I have known Arlo my whole life, and he comes and he visits me often and we have a lot of conversations, and so what you are suggesting doesn't make sense to me. Q. Is this funny to you, sir? A. No, you are funny to me. Q. I am, likewise. A. I am sorry. MR. RENSCH: Nothing further. THE COURT: Redirect. MR. McMAHON: No, sir. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 380 THE COURT: Thank you, you may step down. Call your next witness. MR. McMAHON: John Trudell. JOHN TRUDELL, called as a witness, being first duly sworn, testified and said as follows: DIRECT EXAMINATION BY MR. McMAHON: Q. State your name, please? A. My name is John Trudell. Q. Where do you live, Mr. Trudell? A. In Los Angeles, California. Q. How long have you lived in California? A. Since about 1979. Q. What is your occupation? A. I am a writer and a performer, actor, speaker, in that area. Q. You currently have a band? A. Yeah, Bad Dog. Q. Have you been an entertainer for quite a while? A. Twenty years. Q. Where were you born and raised? A. I was born in Omaha, Nebraska, and I was raised in small communities around Omaha, and my reservation is Sante in JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 381 Northern Nebraska. So I enlisted when I was seventeen, and up until that time maybe I had lived in both communities, both worlds equally. Q. You did what at seventeen? A. I enlisted in the Navy. Q. In the Navy, okay. How long were you in the Navy? A. Four years. Three years and ten months. Q. Where did you go after that? A. I stayed in southern California, because I was home ported in Long Beach. I went to school for a while in San Bernardino, and figured out that wasn't really working out for me, and then I went to the Alcatraz occupation in 1969. Q. What do you had mean by the Alcatraz occupation? A. In 1969 collective native community, we called ourselves Indians of all Tribes Alcatraz, but we occupied the former prison under the 1868, in relationship to the 1868 Fort Laramie treaty about surplus government lands reverting to native use. Q. About 1969 or so did you become somewhat of an activist? A. Yes, 100 percent. Q. How old are you now? A. I will be 58 next week. Q. Have you ever been involved with the AIM organization? A. I was chairman of AIM from 1973 to around 1979. Q. What did you do as chairman of AIM? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 382 A. Me, I think basically I acted as a spokesman. You know, really what, I mean the title is chairman, but in reality I acted as a spokesman. I looked at that as what my role was. It wasn't so much, because AIM at that time with the leadership, you know, we all had different supporters. I mean each leader had their own group of people around them, but I never really looked at my role as being an order giver, it was more to speak, because that is, I always felt that's why. When I was nominated to be, actually was named cochairman, and there was an incident and I became chairman, but I always felt it was the people liked my analysis of things. Q. Did you know Anna Mae Pictou-Aquash? A. Pardon? Q. Did you know Anna Mae Aquash? A. Yes, I did. Q. When did you first meet her? A. I met her at, I think it was in Minneapolis, but it was at an Indian education conference in Minneapolis. I think it was the summer of 1970. July or August, something like that. Q. Did you become friends with her? A. Yes, I did. Q. Did you see her occasionally off and on since 1970 then? A. I didn't see her again until in the summer of '70, and I think the next time I remember seeing her was in 1974 at the Means-Banks trial in St. Paul. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 383 Q. Did you ever see her in 1975? A. Yes, I did. Q. What time of the year did you see her? A. I saw her in, at the Farmington AIM conference or convention in, that would have been in June of 1975. I saw her then, and then I saw her again in September of 1975 in Los Angeles. Q. So when you saw her at the Farmington convention did you have any conversations with her? A. Yes, I did. Q. Was she concerned about anything at that time? A. She was concerned because she had been accused of being an informant, and because we had some discussion about that, but at the time my feeling was, what I got out of it, she was just more angry. I didn't sense really it was about fear, but she was really upset that people were making this accusation to her. Q. After the Farmington convention, when was it that you saw her next? A. Pardon. Q. When did you see her next after that convention? A. After that I saw her in Los Angeles, I think it was September of '75. Q. Where was that that you saw her in LA? A. Anna Mae and Miwak Butler had arrived in LA and had been JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 384 detained at LAX, and Miwak Butler was taken and locked up at the civil brand center, and Anna Mae was cut loose. So I spent time with her. There was a Chuck Salazar, Ernie Peters and myself, and the White Bear family. Q. I am sorry, the what? A. White Bear. So, and at that time because Miwak had been arrested, and all of this was going on in relationship to the fire fight in Oglala the previous summer. Between Chuck and Ernie and myself we tried to, one of us always stayed with her as much as possible just to act in the capacity of being security. Q. Who was Anna Mae staying with while she was in California then? A. Between White Bear's and I think maybe one evening or so she might have spent at Chuck Salazar's, and but basically at the White Bear family. Q. What was her state of mind at that time? A. At that time she, it was about more than being angry, she was afraid. Q. Did she leave while you were still there? A. Pardon? Q. I mean did you, were you in California when she left California, let me ask it that way? A. Chuck Salazar, Ernie Peters and myself, we took her to the airport. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 385 Q. You know where she was going? A. She was going to Denver. Q. You know why she was going to Denver? A. No, I don't know why she was. She didn't say, but somebody had gotten in touch with her, and I don't know who it was, but someone had gotten in touch with her to go to Denver. Q. Did you ever see Anna Mae again? A. No. Q. So September of '75 would have been the last time that you saw her? A. Yes. Q. Did you ever talk with her on the phone after that? A. No. Q. How did you find out she had been killed? A. I found out that she was killed, it was in a conversation I had with Dennis Banks in Berkley some time in '76. February, March, some time in '76. At this time I didn't know there had been a body found, and Dennis mentioned to me, he said, well, that body they found in Pine Ridge or Wanblee, he said I think it is Anna Mae. This was the first that I had known. Q. Now prior to discovering that she had been killed, did you ever receive anything that made you believe she was in danger? A. Well, two things. I mean in September when I saw her, JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 386 to 400 PAGE 386 because she was afraid, and she told me at that time, you know, she had had a run-in with David Price and that Price was trying to get her to tell about the Oglala fire fight, and in the course of that she swore at him, and then he said to her that he would see her dead within the year. And she was upset about that. So when she came and I saw her in September, she said to me, you know, that if you ever want to, if you had to go somewhere, she would go, there was an island where she grew up, and that would be the place she would go that would be safe for her. Then she told me to, that in the rain, she loved the rain, and to always remember her in the rain, and we had this conversation, and at that time her fear was about that. She was angry because still accusations, name calling about her being an informant or a pig, she was angry about that, and then now, but then now the element of fear has been added because of this dialogue she said that she had. Then after she had been arrested in the mobile home incident in Oregon, so this would have been around the end of November or December, I don't remember the exact time, but I got a letter and a ring from her that was delivered through Mathalene White Bear. Q. Who's ring was it? A. It was Anna Mae's ring. Q. How did you know that? A. Because Anna Mae and I had an understanding that just JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 387 because the way things were at that time if she needed to communicate with me, that she would send this ring, because then I would know somebody wasn't playing a bunch of games. Q. You also said you received a letter. A. Yes. Q. Do you still have that letter? A. No, it burned down in my, there was a fire in my home in 1979 and it burned. Q. Do you know Arlo Looking Cloud? A. I have met Arlo once that I can remember. Q. You see him in the courtroom today? A. Yes. Q. Would you point out where he is seated, please? A. Sitting right there. (Indicating). MR. McMAHON: May the record reflect he pointed to the defendant. Your Honor? THE COURT: It may. BY MR. McMAHON: Q. Have you ever had an occasion to visit with Mr. Looking Cloud about Anna Mae's death? A. One time, in 1988. Q. Where was that at? A. My band, we were on tour with a band called Midnight Oil, and we played in Denver, and I saw him then after the show. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 388 Q. How is it that you had a conversation with Mr. Looking Cloud? A. Troy Lynn brought him, Troy Lynn had said to me that Arlo wanted to talk with me. Q. Troy Lynn Yellow Wood? A. Yes. So she brought Arlo to where I was at. Q. And where were you at when you saw Mr. Looking Cloud? A. I think it was in my hotel room in Denver. Q. Who was present during this conversation? A. Myself, Troy Lynn and Arlo. Q. Did Mr. Looking Cloud talk to you about what had happened to Anna Mae? A. Yes, he did. Q. What do you remember about him telling you what had happened to her? A. Well, first, I mean I was surprised that he was coming to talk to me about this. Q. You didn't know him at that time? A. No, I may have met him. But, no, I didn't know him. So he told me that he and John Boy and Theda, they had taken her from Troy Lynn's house in Denver, and that they brought her to a place in Rapid City, they took her to one house, one place, and then from there to an empty apartment or house, and that this house belonged to Thelma Rios, and that they kept Anna Mae there for maybe a day. And that while she was there that JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 389 Laurelie Means and Madonna Thunder Hawk and Thelma Rios and John Boy and himself, between them, somebody always stayed with her, and she was kept in that house not free to leave. Q. Did he ever mention to you why Anna Mae had been taken to South Dakota? A. To be questioned. Q. About what? A. Being an informant. Q. Did he tell you where they went once they left Rapid City? A. The best I can remember what he said was that they were in Rapid City maybe 24 hours, a day or so, something along that time line, and then they took her to a house near the Indian hospital in Rosebud. Q. Did he say what happened at that house in Rosebud? A. During this whole process that Anna Mae was trying to get them to let her go, talking to them about letting her go, and that she was very afraid. Then they took her, so then when they went to this house near the Indian hospital, then Arlo stayed in the car with Anna Mae and John Boy and Theda went in the house. Q. Did he say if Anna Mae and he had any type of a conversation? A. Is that she was just asking them to let her go. She wanted to be free, she was afraid, you know, and basically it JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 390 was that kind of, but I don't know if that is really a conversation. She is saying to him she wants to, would he let her go. Q. Did he ever mention to you that they had also stopped in Pine Ridge? A. I don't remember him telling me that. Q. He didn't ever mention to you that they stopped at a house in Allen? A. I don't, I truly don't remember it. I mean he may have said it, but I don't remember that. Q. So what did he tell you happened once they left the house in Rosebud? A. Well, John Boy and Theda came out of the house, and that they got in the car and they basically drove up to the place near Wanblee where she was shot. Q. Did he tell you what happened at the site where she was shot? A. That they had, that he and John Boy and Anna Mae got out of the car, and that they walked Anna Mae to a spot where she was shot, and in the course of this walk that Anna Mae was crying, praying, talking about her daughters. She didn't want to lose her daughters, and what were they going to do, please let her go, and things of that nature, and then she knelt, that John Boy had her kneel down, and John Boy shot her in the back of the head. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 391 MR. McMAHON: That's all I have. THE COURT: Cross exam. CROSS EXAMINATION BY MR. RENSCH: Q. Morning, sir. Or almost afternoon I guess it is. In this conversation that you had with Arlo, what year was that? A. 1988. Q. Who else was present during that conversation? A. Troy Lynn. Q. Was she adding to the conversation at all? A. Pardon? Q. Was she talking at the time? A. She may have been, but I don't really remember that. Q. You had spoken to Troy Lynn prior to meeting with Arlo, had you not? A. Yes. Q. And she had told you what she thought Arlo would say to you, isn't that correct? A. No, that's not correct. Q. Did she tell you anything about? A. She said he wanted to talk to me, that he wanted to talk to me, but it was about what happened with Anna Mae, it was in relationship to Anna Mae. Q. Where did this conversation take place with Arlo? A. In a hotel room. Q. In a hotel room? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 392 A. Yes. Q. Is there any possibility it took place in a car? A. We may have went down to the car from there, but basically because they came to my room. Q. First of all, you didn't write any notes of this or anything like that, did you, sir? A. No. Q. I suppose that through the years because you knew Ms. Pictou-Aquash that if something comes out on this subject you would read it if you could? A. I would what? Q. Read something that comes out on this subject, isn't that correct? A. Well, maybe, because it depends on who is writing it, because a lot of people write things that have no basis to reality. Q. It seems to me that at some point in this case you have made a statement to somebody to the effect that it is kind of hard to keep it all straight, what you have read and what you have heard and things like that. You recall anything like that? A. Yes, I do, and it was in regard to a specific statement. Q. Now when we are talking about then what Arlo is telling you in this vehicle, or in the hotel room, as the case may be? A. In the course of the evening. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 393 Q. When ever he was there. Can you, as you sit there today, specifically recall him telling you names of people in Rapid City, or could you have filled that information in? A. He told me the names, because I did not -- he told me those names, there is no mistake about this. Q. There is no mistake about that? A. No mistake about this. Q. And this conversation occurred I think we have established was it '88? A. In 1988. Q. 1988, okay. Did he ever say anything to you about wanting Ms. Pictou-Aquash to die? A. No. I mean no, he didn't say that. The impression I got was that he didn't know what the end result was going to be. That I will say that, but it happened, and he played his role. Q. When you were speaking to him, was it clear to you that the fact that she was killed was a surprise to him? A. I got the impression, I don't know about surprise, but up until the time they left that house. See after they left that house, I don't know about surprises any more, alright, because somebody said to do this, but up until the time they went to that house I don't think he expected that she would be killed. Q. You just said at that house somebody said to do this? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 394 A. Yes. Q. What are you referring to? A. Well, John Boy and Arlo and Theda, they weren't decision makers. I mean they couldn't give this kind. It wasn't their idea to go down there and pick her up, it wasn't their idea. They did what they were told. Q. You have told us what Arlo told you already, and I don't recall you saying anything about him saying that someone issued an order or said anything at that house. Do you recall him saying that anybody at that house said anything about Ms. Pictou-Aquash being killed? A. John Boy and Theda went in that house, and when they came out it was with the instructions to kill her. Q. That's what Arlo told you? A. I almost say it verbatim in those exact words, but that was the impression of what I got out of what he told me. Q. I am not trying to nitpick with you. A. I understand. Q. I nitpick with you, but it is very, very important. I want to know if you heard from Arlo's mouth something about him knowing that she was going to be killed in advance of her death? Did you hear anything in that regard? A. Up until the time they went to that house, my opinion he didn't know she was going to be killed, but when they left that house they knew. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 395 Q. Arlo told you they knew? A. They took her out and shot her. Somewhere in there, so I mean -- Q. Well, we are here about what Arlo said, and did Arlo tell you that he knew, or are you making that assumption? A. I am very careful about making an assumption on this. It is just that when John Boy and Theda came out of that house, because Theda took Anna Mae's jewelry, took some of her jewelry. Q. So as you are talking to us now you remember Arlo saying something about Theda taking Anna Mae's jewelry? A. Somewhere in the course of that, yes. Q. Is that something that you could have read, sir? A. No. Certain things I remember because I had not heard them before. I can't remember the point that you are going to, but there was something I had been asked, and I wasn't sure if I had read that part. Q. Mr. McMahon had asked you what Arlo had said, and I don't recall you saying anything about jewelry. Maybe I missed it. A. Maybe I forgot to say it to him, but the deal is -- Q. Because you and I have had a telephone conversation? A. Yes, we have. Q. Didn't you say to me that this is a situation of Arlo being in the wrong place at the wrong time? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 396 A. That's my feeling. Q. Didn't you say to me that from everything Arlo told you that this was a complete surprise on his part? A. Something to that effect. Q. I guess I am asking you if you would say something to the effect that from what Arlo told you, this was a complete surprise on his part, why the change? A. I don't think I am changing. See, because it all hinges at that house, alright, because I think there was a complete surprise to him that that decision had been made. Q. Well, do you know at what point he became aware of the decision, did he tell you? A. When he got out of that car and started walking to where she was killed. Q. What did he say about that? A. They got out of the car, and they had the gun and they walked to the thing. So now I am making an assumption, okay, I am making an assumption he knew by then that something was going to happen. Q. You use the word they, it includes a lot of people? A. John Boy and Arlo got out of that car with Anna Mae and walked her to that spot. Q. Arlo never said he had the gun, did he? A. No, he never said he had the gun. Q. He didn't know that John Boy had the gun, would you JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 397 agree? A. No, I can't agree or disagree with that. Q. You don't know? A. Right. Q. And that John Boy shot her, and that was a surprise to Arlo that she would be shot? A. I don't know. Q. Did he say that to you? A. Did he say that it was a surprise to him. Q. It was a surprise when she was killed? A. No, he didn't use those words. Q. What words did he use that led you to say to me that something to the effect this was a surprise to him? A. He was picking Anna Mae up in Denver and taking her to the house, wherever she was held here in Rapid and then taking her to the house in Rosebud, alright. I had the feeling that none of those three that took her up to that point really knew what the outcome was going to be, because somebody was telling them what to do. But when they left that house, somebody amongst them knew what was going to happen. So to me I would say that the surprise, Arlo was surprised that this happened to her, but it was after that visit to that house. Q. You just said that you think that somebody knew what was going to happen when they left that house, right, sir? Somebody in that car? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 398 A. Somebody did. Q. But Arlo didn't tell you that he knew what was going to happen when they left that house, did he? A. The best I remember what he said was that when John Boy and Theda came out of that house, they took her where she was shot, and then he and John Boy got out of the car, alright, and walked her to where she was at, alright, and John Boy had her kneel down and shot her in the back of the head. And if I remember correctly, there was something about maybe a blanket or something, but I may be confused about that. Q. So you are telling us what he said, you are remembering, you are visualizing him talking to you wherever it was you were talking and trying to tell us also what he said? A. I mean he said what he said to me, yes, he did. Q. As you recounted all this you didn't say anything about her begging for her life, or saying please don't shoot me, or mentioning anything about her kids? A. Say this again. Q. As you just told us what you he said happened? A. He told me about her begging for her life and her kid. Q. Is your position he told you she was begging for her life on the walk out to the ravine? A. Yes. Q. And sir, you don't know whether she was begging when Theda and John Boy went in to this house by the Indian JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 399 hospital from his conversation? A. No, she was. Q. You are telling us that he told you she was begging when they went in to the house, is that right? A. Yes. Q. And that when the other two of course went in the house he would be in the car alone with her? A. Yes. Q. I want to ask you if you, now you have spoken with an individual about this matter and that was tape recorded, have you not? A. Yes. Q. You know an individual by the name of Neil Chapman? A. Yes. Q. He interviewed you about this, did he not? A. Yes. Q. Did you know he was taping it as he was interviewing you? A. Yes. Q. Did you say this to him, and I am at page 8. MR. McMAHON: Excuse me, Your Honor, I believe this is improper impeachment, he can refresh his recollection? THE COURT: True. MR. RENSCH: Can we approach for a moment, please? THE COURT: You may. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 400 ( Bench Conference) MR. RENSCH: This is a prior inconsistency, it need not be under oath. I can ask him if he was asked the question and he denies it, then he has access to the document. I am looking at a prior inconsistent statement in this interview and it's my intent to ask him if he made the statement. THE COURT: You haven't asked him yet. MR. RENSCH: No, I haven't, I think it's my choice if I want to let him refresh his recollection or ask him outright. THE COURT: You were referring to the pages were you impeaching him before you asked the question. MR. RENSCH: I was just doing that so counsel would know where I was at. Do you want me to do some other procedure, I think I can, but I think I am allowed to say did you say this, and if he didn't, he can deny it, and it would be my option to bring in the person who made the statement to tie it up. I don't think I have to throw it in front of him to ask him the question. THE COURT: You haven't asked the question yet, I think that's the point. MR. RENSCH: Do you want me to put it in front of him. THE COURT: What you do is up to you, but you haven't asked a predicate question yet that you have either to JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 401 to 415 PAGE 401 refresh him with or impeach him with. MR. McMAHON: I thought he was going to try to impeach him, and there wasn't anything pending. THE COURT: That's what I thought, too, but I think we have that ironed out, I think. MR. RENSCH: So everybody knows, the predicate questions I asked him about him claiming that she was begging in the car, that's what this impeaches, that's why I was asking those previous questions. THE COURT: Let me look at what you are looking at. MR. RENSCH: Right here. MR. McMAHON: I don't think that even talks about it. MR. RENSCH: I think a prior inconsistent statement. MR. McMAHON: Why is it inconsistent? MR. RENSCH: Because he said she was begging in the car, here it says she wasn't. It says what ever she was stating to him when she was by herself with him in the car. MR. McMAHON: What ever she was saying, it doesn't say she wasn't saying. MR. RENSCH: If she wasn't saying, that would imply. THE COURT: I don't think so, but you can do what you want, but that doesn't mean I am not going to sustain an objection, we will see. (End Bench Conference ). JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 402 BY MR. RENSCH: Q. Sir, you have just indicated to us that Ms. Pictou-Aquash was saying things to Arlo while he was alone in the car, and that's what Arlo had reported to you, okay. I would like to ask you if you made this statement on another occasion. Page 8. Statement by you. And he and Anna Mae stayed in the car, and what ever he was saying, and I don't, see what I think is I don't think that whatever she was saying to him when he was by himself with her in that car, I think she was saying the same things to the rest of them when they were going. Did you make that statement, sir? A. Say that again, it's confusing. Q. Here, let me show it to you. So much for that. A. Yeah, I probably said that, but I don't, I am confused by the question. Q. You don't really remember where it was that Arlo was saying Ms. Pictou-Aquash was asking to be let go, do you, sir? A. No, I do remember. It was in the car, because when John Boy and Theda went in to that house, alright, she was having this conversation with him not to, about to let her go, her begging. Q. What did he say his response was to her? A. That he couldn't do anything. Q. Did he say anything to her about not thinking that she was going to be killed that you recall? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 403 A. No, not that I recall. Q. Do you know an individual by the name of John Graham? A. Yes, I do. Q. How do you know him? A. Well, I met John Boy, I know him as John Boy, but I met him in the spring of 1976. Q. Okay. You sundanced with him, didn't you? A. Yes, I did. Q. What does that mean to sundance with somebody? A. I can't say what it means for everybody. For me, you know, it is like, it is making an offering, it's an offering of yourself either in return for help that has been given, or, so it is a personal physical sacrifice that is part of a mental psychological sacrifice that you make to the people for this endurance. Q. Do you do that in a circle? A. Yes. Q. Was John Boy in the circle? A. He was sundancing, yes, he was. Q. After that point did John Boy take on some position of prominence within the American Indian Movement? A. Not that I recall. I mean when you say position of prominence, I can't say that. Q. He continued to remain active in the American Indian Movement ? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 404 A. See, during this time in '76 the Butler Robin file on the FBI thing was taking place in Cedar Rapids, and then I went to the sundance. Actually maybe it had already, the trial was over, and then I went to the sundance. And John Boy was there, because I had some involvement with him there at the sundance, and then I don't really remember seeing John Boy again until 1980. I am not going to say I didn't, or '79 and '80. So he kind of, I mean see I lived in my own reality, my family was in Nevada, and I was doing what I was doing. So I wasn't around a lot of activities, but I don't remember seeing John Boy again until about '80, '79 or '80. Q. If you were friends with Anna Mae, why, if Arlo said these things to you in '88, why didn't you call the police and do something about it? A. Because I told Arlo that I would say that what he said to me he said in it in confidence. And I have to respect that, because I felt it was something he wanted to get off his chest, and the reality of it is what he said to me, I had to respect the confidentiality, but at the same time I wanted to know, because up to that time there had been many rumors Anna Mae had been spotted here and spotted there, there had been many rumors around '75, '76, but nobody really knew what happened. But when I talked to Arlo, it made it more concise to me. I mean go to police, pragmatic, I mean no offense, but my relationship with the United States government isn't a real JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 405 good one. I have no basis to be trusting police, I don't want to be a pawn and be used against my own people. No, I don't want that, and what if what is being said is a mistake. So I can't just, yes. I wanted to know what happened to Anna Mae, and I kept my agreement to Arlo until later when I see it in the news from Indian Country these are the things that Arlo has said, and somewhere because I wasn't the source of that information, and then I knew alright, I can now publicly do this. Q. Let me ask you, based upon what you heard as you looked in to Arlo's eyes as he was telling you these things, was it your impression that he wanted her to die? A. Was it my impression that what? Q. Arlo wanted her to die based on what he said? A. No. Q. Was it your impression that he wanted to help see that she died when he told you what had happened? A. No, because he wouldn't have told me if he wanted those things to happen, but those things did happen. MR. RENSCH: Thank you, sir. That's all. REDIRECT EXAMINATION BY MR. McMAHON: Q. Mr. Trudell, you remember the fact that Mr. Looking Cloud told you Anna Mae was begging for her life in the car? A. Yes, I do. Q. You remember that? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 406 A. I remember that. Q. And you remember the fact that he was, she was begging for her life all the while she was walking out to that cliff with them? A. Yes, I do. Q. And she begged them not to kill her? A. Yes. Q. She talked about her two daughters? A. She was saying what are her daughters going to do. See, Anna Mae love her daughters very much, because the time I knew her whatever went on in her family and her daughters, I knew that was a very traumatic thing for her to not have her daughters, so she talked about them, I mean before this. Her daughters were a very focal point in her life, and that night when they were walking her, yes, she was talking about her daughters. Q. I think you said in response to a question by Mr. Rensch that once they came out of that house on the Rosebud they were under instructions to kill her? A. Somebody was. Q. And they went and did that? A. Yes. MR. McMAHON: That's all I have. THE COURT: Anything further? RECROSS EXAMINATION BY MR. RENSCH: JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 407 Q. And Arlo told you that, that somebody gave instructions for her to be killed? A. I don't remember the exact words, alright, but they came out of that house. John Boy, or Arlo told me John Boy and Theda came out of that house and they drove from there and took her out and walked her and killed her. Maybe he didn't say the exact words you are trying to get me to say, but basically he said that, because see, they weren't -- Q. Is it possible? A. It's not something they thought up on their own. Q. Is it possible what Arlo was describing to you was him sitting out in the car, these two coming out of the house, getting in the car, driving to a point, stopping the car, and then this activity took place? A. Say that again? MR. RENSCH: Forget it, nothing further. THE COURT: Anything further? MR. McMAHON: No, Your Honor. THE COURT: Thank you, you may step down. We will take our noon recess now, and I went a little longer because I wanted the witness to be able to finish his testimony. So you are excused, thank you. So we will be in recess until 1:30 this afternoon, thank you. Please stand for the jury. (Recess at 12:20 until 1:30). THE COURT: Bring in the jury, please. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 408 (Jury Enters). THE COURT: Call your next witness. MR. MANDEL: The United States would call Bob Ecoffey, Your Honor. ROBERT ECOFFEY, called as a witness, being first duly sworn, testified and said as follows: DIRECT EXAMINATION BY MR. MANDEL: Q. Sir, would you please state your name? A. My name is Robert G. Ecoffey. Q. Where are you from? A. Albuquerque, New Mexico. Q. Is that where you are originally from, sir? A. No, I am from Pine Ridge, South Dakota. Q. What is your occupation? A. I am the Deputy Director for the Office of Law Enforcement Services for the Bureau of Indian Affairs. Q. How long have you held that position, sir? A. Approximately three years. Q. Can you give me a recap of your law enforcement background and training, sir? A. Yes. I have approximately 28 years in law enforcement starting back in 1975, and I have a Bachelor of Arts degree in JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 409 criminal justice from Chadron State College, graduate of FBI National Academy. I have hundreds of hours in terms of investigative homicide courses, in terms of forensic homicide investigations, crime scene investigations, and sex crimes investigations. Q. Over the course of years what law enforcement positions have you held? A. I first started my law enforcement career on the Pine Ridge Indian Reservation in 1975 as a law enforcement trainee working for the Tribe under the SETA program. I was assigned to work with the Bureau of Indian Affairs police department there in 1975. 1976 I started my official career with the Bureau of Indian Affairs as a supervisory guard at the Pine Ridge jail. From 1976 to 1977 I worked as a guard. From 1977 to 1981 the Oglala Sioux Tribe contracted the program there, I switched over from the Bureau of Indian Affairs, went to work for the Oglala Sioux Tribe where I served as the training officer and captain of police. From 1981 to 1983 I was a Special Agent with the Bureau of Indian Affairs on the Devil's Lake Sioux reservation in Fort Totten, North Dakota. From 1984 to 1986 as a Special Agent again on the Pine Ridge Reservation with the Bureau of Indian Affairs, stationed there. Then from 1986 to I think 1989 I was a Special Agent with the United States Forest Service on the Black Hills National Forest and the Nebraska National Forest. Then in JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 410 1990 I got out of law enforcement for a couple of years, I went back to work on the Pine Ridge Reservation at the Pine Ridge agency as administrative manager for two years. Then in 1994 during President Clinton's first administration I had the opportunity to be appointed as the first Indian United States Marshal in the history of the Marshals service. I served in that position for two years. 1996 I left that position, returned back to Pine Ridge, and served as agency superintendent for five years on Pine Ridge until taking this job as the, originally was the Director of the Office of Law Enforcement Services until about two months ago the Bureau of Indian Affairs went through a reorganization and changed the title to Deputy Director. Q. In terms of your current job, Mr. Ecoffey, do you supervise BIA law enforcement on reservations throughout the United States? A. Yes, I do. Q. Have you, yourself, personally been involved in homicide investigations over the years? A. Yes, I have. I have testified hundreds of times in Federal Court proceedings concerning homicide investigations throughout Indian country. Majority of those cases were on the Pine Ridge Indian Reservation. Q. In particular did you become involved in an investigation into the death of Anna Mae Pictou-Aquash? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 411 A. Yes, I did. Q. Can you tell us, sir, what your first involvement in that investigation was? A. My first involvement in the investigation actually began while I was stationed up in Devil's Lake, North Dakota. I got a call from the FBI and was asked for their assistance. They had picked up some information, or some leads, I led them down into the Denver area. I was asked by the FBI to come along and to assist in interviewing potential witnesses because of my expertise in dealing with Indian people and dealing in the area of homicide investigations. Q. At that time did that pan out at all? A. No, it didn't. Q. When did you next get involved in the investigation? A. Actually the information that really got me involved was in I believe in 1996, September. Look at my note here for a minute. Q. That's fine. A. My actual involvement was in 1993 when I really got involved in the case when information came forward when I was the administrative manager at the Pine Ridge Agency. Q. What type of information came forward at that time? A. Individual by the name of Gladys Bissonette came to me at the agency, I was friends with her, had been friends with her for a number of years. She was heavily involved with the JERRY J. MAY. RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 412 Wounded Knee occupation and with the American Indian Movement. I worked with her on some issues there at the agency, and then I had asked her if she had any information pertaining to the murder of Anna Mae Aquash. At that point in time she provided me with the name of an individual that would likely cooperate with me and come forward and provide additional information. Q. Who was that individual? A. Al Gates. Q. Who is Al Gates? A. Al Gates is a elderly gentleman who lives in Denver, Colorado. He was a family relative of Gladys Bissonette. He came forward, it was actually on June 11 of 1993 when Gladys came forward with the information. Then on June 18 I had asked her, I said will Mr. Gates cooperate with me and provide information about Anna Mae's murder? And she said yeah, I think he will. That was on June 11, 1993. On June 18, 1993 he showed up at my office at the Pine Ridge Agency. Q. Let me interrupt you for a second. Without getting in to what he had to say to you at that time, did he give you information that moved you further along in this investigation? A. Yes, he did. Q. Before we get in to that, up to that time had you had an opportunity to review the evidence in the case and had you done so? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 413 A. Yes, I did. Q. What types of evidence was there available to review? A. Basically after I got involved in the case when I was on the Devil's Lake Indian Reservation and I moved back down to Pine Ridge, it was around 1984, myself and my colleague Special Agent Mitch Pourier with the Bureau of Indian Affairs who also worked with me on the case for several years was reviewing the case at my residence in Pine Ridge, and we started to reconstruct the case to see if we could determine what happened to her. And at that point in time we started looking at the physical evidence that the agents and BIA criminal investigators left in the file. Q. Part of that evidence did you review the photographs? A. Yes, we did. (Exhibits 43-44 marked For identification.) BY MR. MANDEL: Q. Sir, I have handed you what has been marked as Exhibits number 43 and 44 and ask you if you are familiar with those two photographs? A. Yes, I am. Q. What are those photographs of? A. This photograph is a depiction of the crime scene of Anna Mae Aquash. It is a photograph of a bracelet that was on JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 414 her wrist at the crime scene at the time the body was found. Q. Are these actually blow ups of a portion of some of the photographs that were originally taken? A. Yes, they are. Q. Were those made from, if you know, from the Polaroids? A. Yes, these are made from the originals. MR. MANDEL: Your Honor, I offer Exhibits 43 and 44 at this time. MR. RENSCH: May I inquire for the purpose of making an objection. THE COURT: You may. MR. RENSCH: Have those pictures in any way been enhanced by color or anything like that, sir? A. No, they haven't. MR. RENSCH: So those are a blow up of a close up of the small Polaroid, is that right? A. That's correct. MR. RENSCH: No objection. THE COURT: Exhibits 43 and 44 are received. BY MR. MANDEL: Q. Sir, as you proceeded in this investigation at that time, were you familiar with the location where the shooting had taken place? A. Yes, I was. Q. How was it you became familiar with that? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 415 A. Myself and Special Agent Mitch Pourier went out to the scene, Roger Amiotte came out to the scene and showed us where the body was. Q. Sir, I am going to ask you to look at Exhibit No. 43 which I have displayed on the screen there, do you see that? A. Yes, I do. Q. Can you tell us what you observed about that photograph when you looked at it? A. One of the things, and I think that it really points out on this photograph here, is what you can see is clear, ligature markings on the wrist. MR. RENSCH: I object, improper foundation for him to make that conclusion. THE COURT: Overruled. BY MR. MANDEL: Q. When you say ligature markings, what do you mean, sir? A. Where this individual was tied or bound. Right above the butterfly bracelet you can see clearly there is markings in a straight line inconsistent with the bracelet that was there that would indicate that she was tied up and that at the time of her death. Q. So you can draw on that screen just by touching it with your fingertip. Can you sort of put a circle around the area you are talking about? A. (Witness marks exhibit). JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 431 to 445 PAGE 431 speakers engaged in the conversation, is that correct? MR. MANDEL: Yes, Your Honor. THE COURT: You are permitted to have the transcript for the limited purposes of helping you to follow the conversation as you listen to the recording, and also to help you keep track of the speakers. The transcript, however, is not evidence, the tape recording itself is the primary evidence of its own contents. So any script that has been put on the bottom of the tape itself is not evidence even though it may now be a part of the tape because it was added later as an aid to you. You are specifically instructed that whether the transcript correctly or incorrectly reflects the conversation or the identity of the speakers, it is entirely for you to decide based upon what you have heard about the preparation of the transcript and upon your own examination of the transcript in relation to what you hear on the tape recording. If you decide that the transcript is in any respect incorrect or unreliable, you should disregard it to that extent. Differences in meaning between what you hear in the recording and reading the transcript may be caused by such things as the inflection in the speakers voice. You should, therefore, rely on what you hear rather than what you read when there is a difference, and so you won't have a transcript that you will hold in your hand and read, but instead the transcript will be superimposed on the bottom of the tape. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 432 You may proceed. MR. MANDEL: Just to clarify the record, I guess we have the tape that is marked Exhibit 45 actually loaded onto the compute and that is how it is going to be played rather than the physical tape itself. THE COURT: I see. (Videotape Played). BY MR. MANDEL: Q. Is what you saw on the screen here now the same as what is on the video we put in evidence? A. Yes. MR. MANDEL: No further questions, Your Honor. THE COURT: You may cross examine. CROSS EXAMINATION BY MR. RENSCH: Q. Sir, if I ask a question that seems confusing, would you stop me so we are understanding each other? A. Yes, I will. Q. Words can be pretty important in law enforcement, can't they, sir? A. Yes. Q. Because we use words to describe things that have happened, true? A. That's true. Q. And when you write the reports that you write, you use words to write them, don't you, sir? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 433 A. That's correct. Q. And you record the things that happen throughout your law enforcement career in police reports, don't you, sir? A. Yes. Q. Now you have filed many numbers of investigative reports or reports in this case, have you not? A. Yes, I have. Q. And each time you had some dealing with this case you would prepare a report, wouldn't you? A. Many more cases. Q. As it relates to this case, Anna Mae Aquash case, you certainly would be filing reports, would you not? A. Yes. Q. On July 25th, 1995 you were with Arlo Looking Cloud when he willingly went out to the scene of this killing and he showed you what happened, didn't he, sir? A. Yes. Q. And what he showed you happened was essentially the same thing that he just talked about on this video that we have seen, is that correct, sir? A. In the video there he did not mention that when they, at the scene on the 25th, when they took him out there he said that Anna Mae wanted to pray first and then Arlo, then John Boy took the gun and put it in the back of her head an shot her. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 434 Q. Other than that, though, his statements at the scene were consistent with what he said on this video that we have just watched? A. Fairly consistent. Q. Do you have any specific inconsistencies that you have noted? A. No. Q. Can you think of any specific instances as you are sitting there? A. Just that he added more in the video. The one occasion there when he said when they crossed to the fence, he said when we crossed the fence, he said I think she knew then what was going to happen. Q. Incidentally, on July 25, 1995, you were the United States Marshal for this district, is that right? A. That's correct. Q. In your capacity as the United States Marshal there is equipment available to you that is known as a wire, would you agree? A. Yes. Q. Meaning you could have had a recording device on your body to record just exactly what he said out there as he was standing on that embankment, isn't that true? A. That's true. Q. Did you choose not to use such a recording device? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 435 A. I chose not to. Q. So before you met with him you thought about using a recording device, is that right? A. No. Q. Well, you just said you chose not to use one. Did you choose not to use the recording device? A. I never thought about using a recording device. I had witnesses there with me that stood there at the scene. Q. If you don't use a recording device -- well, you correct me if I am wrong, but it is easier for you to put your slant on what was said, isn't it, sir? A. I am not putting any slant on what was said. Q. If you wanted to put a slant on it, it would be easier for you to do so if there was no tape recording of his statement, is that not so? A. If I choose to put a slant, that's true. Q. Did you ask any of the other agents that were in your employ on July 25th to tape record anything that Arlo Looking Cloud had said? A. No, we didn't. Q. You have told this jury that Arlo said to you that day we got her out of the car, we took her, and this is where we walked, is that correct? A. That's correct. Q. When you prepare a report, though, of your conversation JERRY J. MAY, RPR, CM 400 South Phillips Avenue, tt305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 436 with Arlo on that day, you note that he says that John Boy took her out of the car, don't you, sir? A. He said John Boy took her out and then I got out and went with them. Q. And that John Boy told Looking Cloud to come along, is that correct? A. That's correct. Q. And that Looking Cloud then reenacted what had occurred, correct? A. That's correct. Q. So Arlo did not say to you we got her out of the car, did he, sir? A. Yes, he did. Q. He said that we got her out of the car? A. At one point in time he said, in his conversation with him, he said we stopped, John Boy got out, I got out, and we got her out of the car. And then he said I will take you, I will show you where we went with her, and we went walking in to the ditch. Q. If Arlo Looking Cloud is saying we got her out of the car, using the word we, that is pretty important, isn't it, sir? A. Yes. Q. Because that would show that he was helping if he used the word we, right? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 437 A. That's correct. Q. So if you were to have heard something like that, your practice is to note important matters in your report, isn't that true? A. It is. If you are referring to the report I wrote on the 25th, that wasn't a verbatim report of everything that was said, that was only a report to detail the locations that he took us. Q. Well, when you write a report you want to note the important facts, don't you? A. Yes. Q. You would agree that it is an important fact that Mr. Looking Cloud said we took her out of the car, right? A. All I remember is that that is what he said. Q. Would you agree that that is an important fact that he said we took her out of the car? A. That is an important fact. Q. Yet in your report you did not note that he said we took her out of the car? A. No, I didn't. Q. You in fact say John Boy got out of the front of the vehicle and then took Anna Mae out of the back, isn't that what you put in your report. A. That's what I put in my report. Q. You wrote this report on what date? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 438 A. I think it was probably the next day. Q. So that was when these events were much fresher in your mind than they are now if it is the next day, can we agree upon that? A. Yes. Q. You also indicated that you had some people go out to the scene and use a metal detector to try to find some bullets, is that correct? A. That's correct. Q. What year did that occur? A. That occurred in 2003. Q. 2003. How many years after this killing was that? A. Twenty-seven years. Q. Twenty-seven years. Now you were aware, I mean you grew up in this region, didn't you, sir? A. Yes, I did. Q. The Bad Lands have become the Bad Lands because of erosion, haven't they? A. Yes. Q. And if we had testimony in this record from Roger Amiotte that these cliffs have eroded through time, would you be in any position to disagree with that? A. No, I wouldn't. Q. You don't know how similar the top of that bank is to the way it was back in 1975, do you, sir? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 439 A. No, I don't. Q. You don't know if three feet have eroded off of that, do you, sir? A. No, I don't. Q. So if he had shot into the ground at the top of the base of that cliff, we will call it, it is possible that that could have eroded and fallen down through the years, is that not so? A. That's correct. Q. You, sir, you are not claiming to be any medical expert, are you? A. No, I am not a medical expert. Q. You don't have any training in medicine, do you? A. No, I don't. Q. You don't have any training in the functions of the human body, do you? A. No, I don't. Q. You don't have any training in the chemical processes that occur in the human body, do you, sir? A. No, I don't. Q. You don't have any training in what happens to a body after a person has passed away, do you, sir? A. Yes, I do. Q. What is that training? A. That training is from forensic training that I have received from crime, sexual crime investigation, from dealing JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 440 with hundreds of homicides that I have dealt with, hangings that I have seen during my 28 years to see what effects that are on the body after a crime like this. Q. You have told us as we looked at the picture of her left hand that had the bracelet on it that the black marks that appear in one of the Polaroid photographs in your estimation could be ligature marks, is that correct, sir? A. That's correct. Q. But you don't know for sure whether those are ligature marks, do you? A. I would say that it is. Q. You would, okay. Well, let's test your knowledge of the human body after it dies. Do you know what livor mortise is? A. No, I don't. Q. Well, if we had a pathologist come in here and talk to us about viewing Ms. Pictou-Aquash's body, do you think that the pathologist would know more about the human body than you? A. Yes. Q. Are you aware of the fact that the pathologist who reviewed this body found no other indication of injuries other than one bullet hole? A. What pathologist are you talking about? Q. Talking about Dr. Garry Peterson? A. Yes. Q. Well, would you say that Dr. Garry Peterson is in a JERRY J. MAY, RPR, CM 400 South Phillips Avenue, tt305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 441 better position to, since he actually viewed the body, to determine what would be an injury and what would not? A. The fact that the hands were not with the body when he did the second post mortem he couldn't tell whether the ligature markings were there or not. Q. Well, he's never told us that, do you know that, sir? A. I don't know that. Q. When they cut the wrists and hands off of a body it leaves what is not cut, would you agree? A. That's correct. Q. Sure, and those black marks that you talked of go up the arm, don't they, sir? A. The black marks, I think if you put the photo back up, you are talking about some scratch marks which are post mortem down below the bracelet, which is probably scratches from either being drug in the weeds, and then above the bracelet you can see the ligature markings. Q. You say probably scratches from being drug in the weeds, is that what you are telling us? A. That's correct. Q. You don't know one way or another whether those are scratches from being drug in the weeds, do you, sir? A. I believe she was shot at the top of the bank, she was untied and pushed over the edge. Q. We know what you believe, and you have told us that you JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 442 looked at some photographs that were 25 years old and you have come to conclusions. But you don't have any other evidence that indicates that those, where those scratches came from, do you, sir. A. No, I don't. Q. Likewise, you don't have any other evidence that indicates where the black markings came from, do you, sir? A. I believe they are consistent with the fact that we have testimony that she was tied up, and that that was from the rope marks, or what ever they used to tie her up with. Q. So that is your belief that you have arrived at through your years of experience and things of that nature? A. That's correct. Q. If livor mortis has been testified to in front of this jury as being the settling of blood at a low point on the body, if that wrist were at a low point when this body was laying there, would you agree that that could have been from the settling of blood? A. No, not at all. Q. You don't have any medical background to say otherwise, though, do you, sir? A. No, I don't. Q. When you spoke with Arlo Looking Cloud on this videotape that we just watched, did you ever lie to him? A. No, I didn't. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 443 Q. Is it your practice to lie during an interrogation? A. No, it isn't. Q. You thanked him at the end for his cooperation, didn't you, sir? A. Yes, I did. Q. And you meant it, didn't you? A. Yes, I did. Q. Now not only did he speak to you on July 25th of 1995, and on the time in 2003 when we just watched up here on the screen, but you in fact had spoken to Mr. Looking Cloud about these events in November of 1994, is that not so? A. I am not sure whether I can mention that. Q. I am asking you? MR. MANDEL: I ask that we approach on this matter. THE COURT: Very well. (Bench Conference) MR. MANDEL: Your Honor, this refers to an interview that took place pursuant to a proffer that was made. We agreed it would not be used against the defendant. We did not use it. For the defendant to seek to put this in, it is hearsay evidence, it is not admissible under any exception to the hearsay rule. We have steered clear of it, because it wasn't usable, we agreed not to use kind of a queen for a day thing, we agreed not to use it, but I don't think we can have that turned back on us. And as I say, this at this point is JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 444 straight hearsay testimony. He is seeking to offer it, we didn't offer that and it doesn't fall under any of the exceptions to the hearsay rule. MR. RENSCH: It's my client's statement, the hearsay rule does not apply to it, and it is exculpatory. THE COURT: We are going to have a hearing out of the presence of the jury on this one. (End Bench Conference). THE COURT: We are going to have a hearing out of the presence of the jury, it is time for an afternoon recess anyway. So don't talk to each other about the case, we will be in recess maybe a little over fifteen minutes, I have to deal with an evidentiary matter. Please stand for the jury. (Jury Leaves). THE COURT: Please be seated. Alright. Does Mr. Ecoffey need to remain on the stand for this hearing. MR. MANDEL: I guess that all depends what comes up, Your Honor. THE COURT: Well, okay, sit tight then. The government asked for the side bar so the government may proceed. MR. MANDEL: Your Honor, under the rules of evidence the United States has the ability to bring in the defendant's statement as admissions against interest. The defense does not have the right to bring in other statements, and in fact JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 445 these aren't admissions against interest. The defense claims the statement it wishes to bring in is exculpatory. What happened was in 1994, the defendant, represented by counsel, came in and agreed to use a proffer. The terms of that agreement were that we would not use the statement against him, we would not do so, we didn't proceed on the basis of that statement. As part of that agreement at that time he also took a polygraph test, and frankly that polygraph test came back showing deception on the issue of whether or not he fired the shot. Now this is stuff that we didn't go in, we couldn't go in, isn't properly admissible before the Court. Now the defense wants to go in to it and offer it. Our position is very simple, as to the statement there is not the, any basis for the defense to bring it in. Doesn't fall under any exception to the hearsay rule, and the fact that it is the defendant's statement as he asserted doesn't make it admissible, and the fact it is an exculpatory statement by the defendant doesn't make it admissible. What the difference between the government bringing it in and the defendant bringing it in, the answer is simply this. For us it becomes a hearsay statement that suffers the same problem as all hearsay statements, and why they don't get in, not subject to cross examination. Stuff we choose to bring in that is inculpatory, or exculpatory for that matter, that's our right, but not the defense's right to enter those hearsay statements JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 416 to 430 PAGE 416 Q. What would be the significance of those ligature markings? A. The significance would be that at the time of her, that she was shot and killed, and at the time she was shot and killed that she was tied up at the time. Q. Why do you say that she would have been tied up at the time? A. Because these are post mortem markings, means the heart stopped beating, the blood stopped flowing through her system, and those marks were left as a result of no blood going through her system at the time. Q. I want to move onto the time -- sir, at the time you met with Al Gates, did the discussions you had with him lead you to another suspect in the matter? A. Yes, it did. Q. Who was that suspect? A. It actually led us to the defendant here, Mr. Arlo Looking Cloud, John Graham, John Boy Patton, and Theda Nelson, Theda Clark. Q. Specifically as to the defendant Arlo Looking Cloud, did you take some actions to attempt to obtain information from him? A. Yes, I did. Q. Can you tell us initially what you did in that regard, sir? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 417 A. My initial interview with him was conducted at the Denver County jail. I had contacted detective, or Detective Abe Alonzo from the Denver police department had contacted me and said that Mr. Looking Cloud was in custody on some local charges, and that he was being held. And at that point in time I had learned information through my investigation that Mr. Looking Cloud was either an adoptive relative of Theda Clark, Theda Nelson, in an Indian way that she at some point in time had said that she had adopted him and that he might have some information pertaining to the murder of Anna Mae Aquash. Q. Did you make contact with Mr. Looking Cloud? A. Yes, on September 6, 1994 was my first interview with Mr. Looking Cloud, and that was conducted by myself and Detective Abe Alonzo at the Denver County jail in Denver, Colorado. Q. Mr. Looking Cloud was in custody at that time? A. Yes, he was. Q. Was he informed of his rights? A. Yes, he was. Q. Did he talk to you regarding this incident at that time? A. Yes, he did. Q. Can you tell us what the conversation was, what you asked him and what the responses were? A. Basically I introduced myself to Mr. Looking Cloud, I JERRY J. MAY, RPR, CM 400 South Phillips Avenue, tt305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 418 introduced Detective Abe Alonzo. I told him I was the United States Marshal for the Federal District of South Dakota, that I was conducting an investigation into the murdered of Anna Mae Aquash. I told him that the information had been obtained that he might have some knowledge as to, and some involvement pertaining to the case, and that I would like his cooperation in resolving the matter. Q. Did he agree to speak to you? A. Yes, he did. He said that he didn't know anything about Anna Mae Aquash. I told him that the murder occurred around the first or second week of December in 1975. He said he didn't know Anna Mae Aquash. Matter of fact, he said that he wasn't in Denver at the time, that he thought that he was in Florida during December of 1975. At that point in time I told him that I had information that I had seen at the Denver police intelligence section where police officers had stopped him outside of Troy Lynn Irving's residence on the night of September 13th, 1975. At that point in time he said he didn't know anything about it. I said if he was willing to cooperate, that maybe the local prosecutor would be willing to drop the local charges on him. He said that he would take it under consideration. Q. That was the extent of that first discussion? A. Yes. Q. I want to jump ahead a bit and ask you if you had JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 419 another discussion with Mr. Looking Cloud at a later date that resulted in a trip up to South Dakota? A. Yes, I did. Q. If you could, can you tell us first of all how that contact came about, what happened? A. Around July 24th of 1975 I got a call -- Q. Excuse me, '95? A. 1995, excuse me. I got a call from Detective Abe Alonzo, and I also at that point in time had a deputy, United States Marshal by the name of Rick Iannucci working with me on the case. Detective Alonzo said Mr. Looking Cloud was again in jail serving some time on local charges in Denver and that he was in custody. At that point in time I asked him if they would go talk to him and see if he would cooperate, and take part in a trip back up to South Dakota here and to show us what happened to Anna Mae Aquash, the places they took her, and the places they held her, and what route they took out to the crime scene where she was killed. Detective Alonzo and Iannucci at that point in time talked with the defendant here, Mr. Looking Cloud, Mr. Looking Cloud agreed to come up here to South Dakota. He came up on the 25th of July. At that point in time on the 24th of July, on the 25th we picked him up here at the Pennington County jail. At that point in time I advised him of his rights again, asked him if he had representation from any attorney. And he said no, that he JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 420 didn't, but he said he was willing to cooperate and to show us where they had Anna Mae Aquash prior to her murder. Q. Just to clarify a couple of things. When you say he came up, he was in custody when he came up, is correct? A. That's correct. Q. So he didn't come up on his own? A. That's correct. Q. Secondly, so we are certain, do you recognize Mr. Looking Cloud and see him in the courtroom today? A. Yes, I do. Q. Could you describe where he is seated and what he is wearing? A. Sitting right here with the sweater on and glasses. MR. MANDEL: Ask the record reflect the witness has identified the defendant, Your Honor? THE COURT: It may. BY MR. MANDEL: Q. Now after you went through the procedure where you read him his rights and he agreed to cooperate with you, can you tell us what next took place? A. Yes. After we talked to him at the Pennington County jail he agreed to cooperate. We read him his rights, I was in my vehicle which was the U.S. Marshal vehicle, Detective Alonzo and Deputy U.S. Marshal Iannucci. We loaded him up at the Pennington County jail and then took him around here. He JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 421 agreed to take us around in Rapid City here and show us where they held her. We picked him up at the jail, he took us out in to North Rapid City at the Knollwood Apartment complex. Q. You say Knollwood? A. Yes. Apartment complex. He told us that he pulled up there with Theda Clark and John Boy Patton, that they had Anna Mae, that they had tied her up in Denver, Colorado, that they brought her up there, that they pulled in up at that apartment complex, and that at that point in time they went in to what was considered an apartment in which nobody was living at at the time, and they held her there when they got there. Q. He take you to any other locations in Rapid City? A. From there he said, well, we took her from there. And I asked him did you go to the Wounded Knee Legal Defense office here in Rapid City, and I told him that we had information pertaining to interrogation there of her, and he said no. He says that he wasn't involved in taking her to that house. Matter of fact, he said that he had left that apartment for a while and then he had returned. Q. Did he indicate to you what happened after he had returned to the apartment? A. He said Theda was very angry with him, screamed at him and chewed him out, wanted to know where he went. Then he said he stayed there for the rest of the day. And then he said that night when it got dark, then they left Rapid City, JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 422 they tied her up, they put her in the back of the car, they left Rapid City and they took her down through the Pine Ridge Indian Reservation up through Wanblee. Q. Did he tell you about any other place they traveled to? A. He said that they had stopped at a residence, they were getting low on gas. He said they stopped at a residence which was a relative of his at the Potato Creek Housing on the Pine Ridge Reservation, they had borrowed some gas, and then after borrowing the gas they went on up through Wanblee. Q. Did you travel to Wanblee with Mr. Looking Cloud? A. Yes, I did. Q. Who was present when you did that? A. Myself, Detective Abe Alonzo, and Deputy United States Marshal Rick Iannucci. Q. Was one of the purposes out there to take some photographs of the scene where this happened? A. Yes. Mr. Looking Cloud agreed to provide basically a reenactment of what had happened with Ms. Aquash at the crime scene there. (Exhibit 1, 2, 3 & 15 marked For identification.) BY MR. MANDEL: Q. I have handed you what are marked Exhibits 1, 2, 3 and 15. First of all, are those all photographs that were taken JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 423 on that day? A. Yes, they are. Q. Who actually took the photographs? A. Detective Abe Alonzo. Q. They show various views of the crime scene? A. Yes, they do. MR. MANDEL: I offer Exhibits 1, 2, 3 and 15, Your Honor. MR. RENSCH: No objection. THE COURT: Exhibits 1, 2, 3 and 15 are received. BY MR. MANDEL: Q. Sir, first showing you Exhibit 1, can you tell us what that shot is, where it is shot from at the scene? A. Exhibit 1 was shot basically from the roadway, which would show the embankment that was being walked to. Q. And the time these photographs were being taken, did Mr. Looking Cloud indicate to you anything about what had happened that night when they arrived there at the scene? A. Yes, he did. Q. What did he tell you? A. He said that they went to junction 73 and 44, that they drove about three miles north of that junction down into the bottom of the Bad Lands there. He said that they pulled over along side of the road, said that, I believe he said he was sitting in the front on the passenger side, that Theda Nelson JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 424 Clark was driving, and that John Boy was sitting in the back seat, and Anna Mae was tied up in the back. He said that Theda pulled over on the side of the road there. He had us pull over right about this location, which was actually about a hundred yards from the actual crime scene itself. Q. Is Exhibit 2 another photograph that you took out there? A. Yes, it is. Q. Who are the three individuals pictured in the photograph? A. The person in the front is the defendant Arlo Looking Cloud. Q. That's in the white T shirt? A. That's correct. I am in the middle and Deputy United States Marshal Rick Iannucci is in the back. Q. That's heading over toward the scene? A. Yes. He was basically reenacting saying we got her out of the car, we took her and this is how we walked. Q. Sir, taking a look at Exhibit No. 3, can you tell me about that photograph? A. That photograph there is actually right near the crime scene there. At that point in time the defendant, Mr. Looking Cloud, was explaining what had happened as they got her up to the scene. Q. What did he explain? A. He said that they, after they got her out of the car, JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 425 they walked her through the ditch as exhibited in the other photo. When they got her up here he said Anna Mae said that she wanted to pray first. She said that when she said that, said that she started to pray. He said John Boy pulled out the gun, put it at the back of her head and pulled the trigger. Q. Are you standing there at the location where that happened according to Mr. Looking Cloud? A. Yes. Q. Then what about Exhibit 15? A. Exhibit 15 is just a continuation of basically his reenactment. At that point in time he was telling the story, he said after John Boy shot Anna Mae in the back of the head, he said that he wasn't sure what was going to happen to him, so he asked John Boy for the gun. He says that John Boy handed him the gun, he thought he might be shot next, so he took the gun and he fired directly into the ground emptying the gun. Q. Did he point to the location where he said he fired it into the ground? A. Yes, he did. Q. Where was that? A. Just basically straight down. Not down where Anna Mae fell, but on the top of the bank where they were, where we were standing. He said I fired into the ground, emptied the JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 426 gun and handed it back and we walked back to the car. Q. So up there on the top of that Bad Lands wall there? A. That's correct. Q. At some point as part of your investigation did you go out to that same crime scene with a metal detector? A. I didn't go out to the crime scene with a metal detector, but I had a couple of my agents go out with a metal detector. After he gave the story, had them go out and go through this whole area, the location, and the exact location where Roger Amiotte pointed out where the body was found to see if they could recover any of these bullets the defendant said he fired into the ground. Q. Were they able to do so, sir? A. No, they weren't. Q. After you took the photographs at the scene, did you have any more discussion with the defendant regarding this matter? A. I asked him, I said now Arlo, you are telling me that John Boy handed you the gun? And he said yes. And you are telling that you fired into the ground? And he said yes. So I asked him, I said or is it, aren't you just trying to explain why your fingerprints would be on that weapon? And he said -- I said isn't it a possibility that you are the person who shot her. And he said no, I didn't shoot her, but I just fired the gun into the ground and then I handed the gun back JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 427 to John Boy. Q. As far as the journey you made with the defendant on that day, did you also attempt to locate the weapon? A. Yes, we did. Enroute back to Rapid City he claims that they buried the gun underneath a bridge between Interior and Wanblee, and we stopped at a location where there was a bridge on the BIA route there. He said they buried the weapon underneath that bridge. We got out with him, we went down underneath the bridge, and looked at the area and different things, and he could not at that point in time point out where the weapon was buried. Q. Was there any further discussion on that day relative to this? A. No, there wasn't. Q. Did you have an occasion to conduct another interview of the defendant in March of 2003? A. Yes. On March 27, 2003. Q. Can you tell us what the circumstances of that interview were? A. At that point in time the defendant here, Arlo Looking Cloud, was indicted by a federal grand jury. A federal warrant had been issued on him for the first degree murder of Anna Mae Aquash. I was in Albuquerque, New Mexico on the 27th, I received a telephone call from Detective Abe Alonzo. MR. RENSCH: Objection, hearsay. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 428 THE COURT: Not yet. Overruled. A. I received a telephone call from Detective Abe Alonzo informing me that he had arrested the defendant Arlo Looking Cloud. Q. Then what did you do? A. I immediately jumped on the airplane in Albuquerque, New Mexico and flew to Denver, Colorado so I would have an opportunity to interview the defendant here. Q. Did the defendant agree to be interviewed at that time? A. Yes, he did. Q. Can you tell us what the -- first of all, what the location of that interview was? A. My interview was conducted at the Denver police department, I believe in the narcotics section, and we had him in an interview room there that was video and audio taped. (Exhibit 45 marked For identification.) Q. Sir, I have handed you what has been marked Exhibit No. 45. I will ask you if you recognize that? A. Yes, I do. Q. What is that? A. This is a video tape of the interview conducted with the defendant here, Arlo Looking Cloud. Q. Did you watch that same videotape again today? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 429 A. Yes, I did. Q. First of all, does it accurately reflect the interview that took place? A. Yes, it does. Q. Are there any parts of the interview that were taken out? A. No. Q. Without getting into the transcription on the bottom, was there anything that was added in terms of what was said or shown? A. No. Q. Does that tape also have what I will call a kind of running scroll line on the bottom showing a transcript of what was said? A. Yes, it does. Q. That is something that was added to the tape later? A. Yes. Q. Did you listen to the tape and compare what is shown on that scroll line with what is heard on the videotape? A. Yes, I did. Q. Does it accurately reflect what is on the videotape? A. It does. MR. MANDEL: Your Honor, I offer Exhibit 45 at this time. MR. RENSCH: I have no objection, just so the jury JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 430 is instructed about transcripts in the course of the videotape. THE COURT: Don't start it yet. Exhibit 45 is received. BY MR. MANDEL: Q. Again at that interview was Mr. Looking Cloud informed of his rights? A. Yes, he was. Q. Did he agree to speak to you again regarding this incident? A. Yes, he did. Q. Generally in this recorded interview overall I know there is detail differences, but in general did he tell you pretty much the same thing he had related to you in the past regarding this? A. Yes, he did. MR. MANDEL: Your Honor, leave of the Court I would ask to play the tape at this time. THE COURT: Just a minute. Before playing the tape I want to give the jury an instruction. There is a typewritten transcript of the tape recording you heard. The transcript which apparently is a script that appears underneath the tape, is that correct? MR. MANDEL: Yes. THE COURT: Attempts to apparently identify the JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 446 to 460 PAGE 446 into evidence. MR. RENSCH: First of all, they are claiming that the statements that they have admitted thus far of my client are admissible as admissions against interest. They have said in part that the statements that are admissions against interest are consistent with the statement that was given in 1994. THE COURT: Wait a minute. MR. RENSCH: Hold on. THE COURT: I want to ask you a question, so just a minute. That's the only way I can learn things, Counsel. Hold tight, I want to ask you questions. How is he saying that because the '94 statement isn't in evidence, how are they saying it was consistent. MR. RENSCH: The reason I tried to interrupt is they have taken the position in the extradition proceedings in Canada against John Boy Patton that Arlo Looking Cloud has made statements about this matter involving John Graham, and I believe the extradition matter refers to three statements and says those statements are consistent. Now the point I was going to make was that they are saying that what they are introducing now would constitute an admission against interest, and that would be an exception to the hearsay rule. To the extent the '94 statements are consistent to these admissions against interest that the government is now placing JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 447 before the jury, they are likewise an exception to the hearsay rule. Even separately and apart from that, separately and apart from that, while they try to say that the statements are generally consistent, I am talking about the 2003 statement and the statement in July of 1995 where he went out there to the scene. They have talked also about some minor in inconsistencies and he has testified about some minor inconsistencies, so to the extent the 1994 statement would buttress the consistencies with these statements, it should be allowed in to support the statements from '95 and 2003. The same way if he were on the stand and they were to come in and say, well, you have made this statement and it is inconsistent at such and such a time, and I could then bring in a previous or a prior consistent statement to buttress it, it's the same theory, even though he is not taking the stand. When they put his statement on the stand in evidence, and there is a prior consistent statement in certain respects, inconsistent in others to the extent that it would be against interest, it should come in through the hearsay rule, it should come in through buttressing the existence of these statements. THE COURT: Just a minute. I am not familiar with anything coming in through the hearsay rule. It comes in either because it isn't in the hearsay rule or an exception to the hearsay rule, the hearsay rule keeps things out. MR. RENSCH: I meant to say through the exceptions. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 448 THE COURT: Go ahead. MR. RENSCH: That's my position. He made this statement with the government asking him a series of long questions back in 1994. It would be our position that to the extent they have attacked the statements of Mr. Looking Cloud that are in the record now, we are allowed to bring this up so that we can show that there is consistency. And to the extent that there is not consistency, so they are trying to say the statements are against interest, it shouldn't be admissible for that reason as well. If they talked to him in 1994 with this proffer agreement against him, but they won't use it, it doesn't mean he can't use it. THE COURT: It might. What about the counsel for the government has represented that part of the proffer was taking a polygraph, and the polygraph indicated deception with regard to whether or not apparently Mr. Looking Cloud was the one who had used the gun. Well, my question is not wanting to complicate this any further than necessary, but you know the Eighth Circuit there is no per se rule as to the exclusion of hearsay. There is in some Circuits, but there is not in the Eighth Circuit. I just wrote an opinion that dealt with that that I released last week, so I am really fresh on the law on that point. If the proffer comes in, then, and maybe the government wouldn't try to put that legal issue in the case, but if the proffer comes in then, does at least then do we JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 449 have a Daubert question with regard to the polygraph, because that is in the Eighth Circuit what the law is, that you have a Daubert. I excluded one. I don't have any idea what the procedures were or anything about this one, I don't know anything about Daubert, which is impossible to get in to, what's your position on that? MR. RENSCH: First of all, the first polygraph that he took was inconsistent, that was administered by an FBI agent who was present in Rapid City. Second polygraph he took indicated a fail. This was a polygraph in Denver. It would be.our position that, you know, we are not trying to bring in the polygraphs. We are trying to bring in the contents of the statement to buttress what they claim now would be inconsistent, and to provide for exculpatory information to the extent that it is consistent with the theory of our defense. As far as getting in to polygraphs, you know, I have tried in a murder case in Pierre to get in an exculpatory polygraph that showed that he passed the polygraph saying that he didn't help with the killing. Not in this particular case. I am not fresh on the law on that right now, but I will tell you this, I have spent over nine weeks of Sunday trying to figure out how to get that in. I don't know if even if we get in to the contents of his statement somehow a polygraph administered back in 1994 or 1995 somehow miraculously becomes admissible. I don't see how it would become admissible simply JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 450 because he made a proffer. I am trying to get this in to show what he said back then, not to show that the government has violated some agreement or anything like that. THE COURT: I am not keen to get in to the polygraph issue, but since it was brought up, I want to talk about it. MR. RENSCH: An inconclusive on a polygraph is one thing, one polygraph examiner can read an inconclusive and say that's bad, another polygraph examiner can read an inconclusive and say that's a fail. If I wanted to dig in to that, there is a possibility one could look at his first chart and say he passed that and thus, you know, he should have obtained some benefit from this matter back in 1994. But it seems that we would be hiding reality if we, he could not get into the fact that he told them what his position was back in 1994. THE COURT: Do you have any authority, getting away from polygraphs, because that is something that I don't want to get in to. I just wanted to explore what does it mean, because I heard about it for the first time, but with regard to the statement position, do you have any authority you are urging. MR. RENSCH: I don't have any with me, I would request an opportunity to look it up. My thinking is simply this, if it is a statement made by the defendant after being advised of his rights, then to that extent it would be JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 451 admissible because of the statement of the government. The government, if -- oh, and another part of the proffer agreement was if he were to take the stand and testify, they would be able to utilize that for impeaching information. If they would be able to utilize it for impeaching information, and if they now bring statements that he has, they are going to claim in front of this jury they are inconsistent in certain respects, he should have the right to buttress his position with what was said to them back in 1994, but I do not have a case at my fingertips right now. THE COURT: Thank you. I take it counsel for the government wants to say something before I rule. MR. MANDEL: Start off with this, this is no surprise the defendant wants to use it, he knew it a long time ago, and he knew we weren't going to bring it in, that we couldn't use it because it was pursuant to that proffer. So it is not some big shock as we stand here today, and the rules of evidence as to hearsay are not because the defendant want's to put it in, or because it is helpful, or because the statement was given to a law enforcement officer that it then becomes admissible. Under rule 801 sub B sub 2, admission of a party opponent, the statement has to be offered against the party. Got to be offered by the opponents, he can't offer it himself. This is inadmissible hearsay. Thank you, Your Honor. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 452 THE COURT: Let me see the proffer agreement and the, I assume there was a proffer statement that was reduced to writing. MR. RENSCH: I do have one, it is in a blue notebook. I have lost an entire notebook. I don't have it with me, I took it back to my office to work on it over lunch. THE COURT: Well, the government would have copies. MR. McMAHON: You want the transcript, the letter and this transcript? THE COURT: Yes, both, please. Well, instead of looking at the top of my head, you as well as the people in the audience might as well have a.break. So we will be in recess for fifteen minutes until I read this. Thank you. MR. McMAHON: Your Honor, can we approach? THE COURT: Yes. MR. McMAHON: I just wanted Tim to be aware that the only copy I have is one I have highlighted. MR. RENSCH: I have copies that are blank. THE COURT: Doesn't make any difference to me. I have got one, I will just read it. ( Recess at 3:35 to 4:00. THE COURT: During the recess the government, counsel and counsel for the defense both came back together to chambers to urge their respective authorities. The defense urged rule 806, the government cited United States versus JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 453 Waters, which my lawyer had already made a copy of for me, and along with some other cases. The ruling is as follows: 806 is not applicable, because it starts off saying when a hearsay statement, which this isn't, or a statement defined in 801(d)(2)(C), (D) or (E) has been admitted in evidence. Well, which it hasn't, because 801(d)(2) (C), (D) and (E) are things that we aren't really talking about here, authorized agents and so on. (d)(2)(A) talking about hear the party's own statement, and that isn't included within the rubric of 806, so 806 doesn't apply. 801(d)(2)(A), as I mentioned, does apply, and under that in both the Waters case, which is a case interestingly coming from the District of South Dakota at 194 F.3rd 926, a 1999 decision, re-hearing denied in 2000. The Court said Rothgeb did not, and could not, overrule the rules of evidence. Federal Rules of Evidence 801(d)(2) provides an out-of-court statement offered quote against a party end quote is not hearsay. In contrast here, Waters, who is the defendant, not the government, sought to introduce a prior statement consistent with his plea of not guilty. And the Court goes on to say such statements when offered by the defendant are hearsay, except in narrow circumstances not present here, and not present here in this case either. Then also I would cite in support of my ruling to not allow going into the proffer United States versus Sadler, 234 F.3rd, 368 at 2000, Eighth Circuit decision. So the objection is JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 454 sustained, and I want to state for the record I reviewed the proffer agreement. The proffer agreement as well as the proffer itself in preparation for the ruling. Alright. MR. RENSCH: At this point can I make an offer of proof? At this point if allowed we would have sought to introduce the transcript, and ask that it be marked and placed into the record as an offer of proof, and that I would have used it to try to fight the fact that the government is going to say and has said through their testimony that in 1994 when Mr. Looking Cloud was approached he denied being there, and then they brought in statements where he later said he was there and reenacted the events. And we would just request the Court utilize that as exculpatory hearsay, and that given the fact that that statement was made with the full knowledge and participation of the government, and with this man being subjected to questioning, and the fact it is consistent in a very good sense with the statements that have been offered by the government, that it would fall within the residual exception to the hearsay rule and would just request the Court reconsider its ruling. THE COURT: So you want to have the proffer letter as well as the proffer made an Exhibit in the Court file? MR. RENSCH: Just the transcript of the contents of the tape interview in 1994 when Mr. Looking Cloud told them essentially what he told them in 2003 so that there is some reference and JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 455 I don't need to go through it all by way of an offer of proof. Not the proffer letter itself, the actual transcript of the event. THE COURT: That's what I am talking about, because the proffer letter which is just two pages, that's the agreement, but then I read a cover sheet, and then I read 24 pages of transcript. MR. RENSCH: Very well, I want to make sure that statement was included. THE COURT: Yes, let's get a clean copy, because the one I have is marked up now. MR. RENSCH: I have one here, I will give it to you so that you have it. THE COURT: This doesn't have the proffer agreement. MR. RENSCH: No, the Exhibit. MR. McMAHON: Why don't you keep my letter of the proffer agreement. If I can just have my transcript. THE COURT: I will attach the proffer agreement letter and then there is a cover sheet, so then this will become the Exhibit and you get your marked one back. MR. McMAHON: Thank you. THE COURT: Then I will give this to the clerk ultimately. This will be a defense hearing Exhibit, and of course one we don't send back to the jury. Alright, are we ready to proceed? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 456 (Exhibit F marked For identification.) MR. RENSCH: Yes, Your Honor. MR. MANDEL: Yes, Your Honor. THE COURT: Alright. Bring in the jury, please. (Jury Enters) THE COURT: Mr. Ecoffey, if you could come back up to the stand. BY MR. RENSCH: Q. Sir, you met with Arlo Looking Cloud out at the scene of this killing in July of 1995, is that not so? A. That's correct. Q. After he told you what happened out there, you sent him back to Denver to do whatever it was he was going to do, isn't that correct? A. That's correct. Q. And between 1995 and 2003 did you in any way monitor the whereabouts of Mr. Arlo Looking Cloud? A. No, I did not. Q. Did you send someone to follow him to see what he did? A. No, I did not. Q. Did you do anything to try to determine where this man would be staying or living in society during that period of time? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 457 A. I did not. Q. You, sir, take an oath when you become a law enforcement officer, don't you? A. Yes, I do. Q. What is that oath? A. An oath to serve and protect the public, to tell the truth, and safeguard the community. Q. So when you take an oath to serve and protect the public, that's something you take very seriously, is that not so? A. That's correct. Q. When you are the United States Marshal for the District of South Dakota do you take an additional oath? A. Yes, you do. Q. Does that include within its makeup to serve and protect? A. Yes. Q. To protect the citizens across this land? A. That's correct. Q. From danger? A. Yes. Q. You have given testimony before a grand jury in relation to this matter, have you not? A. Yes. Q. You testified before a grand jury that at the first JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 458 autopsy there was no evidence of trauma on the body, is that correct? A. I would have to take a look at the transcript. MR. RENSCH: Page 11, counsel. See if this refreshes your recollection. BY MR. RENSCH: Q. Look at line 7. A. Line 7 you say? Q. Yes. A. Okay. What, you want me to read. Q. You testified there was evidence of trauma found on this body at the first autopsy? A. I testified that he didn't. Q. That what? A. That, the question was, the question in the report said they talked about the question was did he find any evidence of trauma on the body that he could test. I said no, he didn't. Q. You didn't receive any information from any pathologist that other than the hands being severed from the body there was any evidence of trauma, isn't that so, sir? A. That's correct. Q. Arlo told you that he went over to Troy Lynn Yellow Wood's house to meet a man by the name of Joe Morgan, didn't he, sir? A. Yes. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 459 Q. When he got there he met Theda, right? A. He met Theda and Troy Lynn at the door. Q. And Theda asked him to drive to Rapid City, isn't that true? A. That's true. Q. And that he went down in the basement, correct? A. First he said he went to the kitchen and then down in the basement. Q. And that John Boy tied her up? A. Yes, that's correct. Q. And John Boy then walked her up the stairs and out of the house? A. That's correct. Q. And that they then drove to Rapid City? A. That's correct. Q. That when they got to Rapid City they went to a vacant apartment and slept there? A. That's correct. Q. He also told you that during the day at some period of time he went and he met a friend by the name of Tony Red Cloud, didn't he, sir? A. That's correct. Q. And that he stayed away so long at this friend's house that when he got back Theda Clark was mad at him? A. That's correct. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 460 Q. And he told you then after that they went down to Rosebud, correct? A. He said he got back, Theda got mad at him, chewed him out, it got dark, then they went toward Rosebud. Q. And when they went do Rosebud Theda and John Boy went in to a house that was in Rosebud? A. That's correct. Q. And he didn't know whose house it was? A. That's correct. Q. And that they stayed in there for a while and then they came outside? A. He said, I remember right, that Theda went in first, and she came out and got John Boy, and then John Boy went in and they stayed in there for a while and then they both came out. Q. And they then drove on this road that goes north toward Kadoka? A. He said they took the back road, and I believe on the tape where it says inaudible it was Wanblee he said on the tape. Q. In any event, Theda pulls the car out there on that lonely road, correct? A. On the what? Q. On the lonely road that night, that's what he tells you? A. That's correct. Q. And that John Boy gets Ms. Pictou-Aquash out of the JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 461 to 476 PAGE 461 vehicle, correct? A. That's correct. Q. And that it is either Theda or John Boy says to him go along, correct? A. I believe he says that Theda said go with him. Q. You believe he said Theda go with him? A. Yes. Q. Didn't he tell you at one point that John Boy said go with him? A. I think at one point he said John Boy said come along, and one point I believe in the statement Theda said go with him. Q. In any event, he goes along and he never tells you that he wants her to die, does he, sir? A. He never told me that. Q. And he never tells you that he is helping with her murder, does he, sir? A. That's correct. Q. And he tells you that when she is shot this is a surprise to him, isn't that correct, sir? A. I can't remember him saying that unless it was on the tape. Q. He didn't know she was going to be shot, isn't that true, sir? A. He did say that. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 462 Q. And if you don't know something is going to happen and it happens, that can be a surprise, can't it, sir? MR. MANDEL: Objection, argumentative. THE COURT: Overruled, it's cross examination. A. Yes, it could be. BY MR. RENSCH: Q. And that when she was shot he took that gun and fired it into the ground because he was afraid of what might happen? A. That's what he said. Q. And he emptied that gun in to the ground, that's what he told you, sir? A. That's correct. Q. And he got back in that vehicle and they buried that gun, true, sir? A. That's what he said. Q. And that when he went back to Denver and after they spent the night, he went about his business and stayed away from this John Boy Patton, that's what he told you, is that correct, sir? A. He said when they first got back there that he stayed at John Boy's there I believe overnight. I remember in the statement he said that there wasn't much discussion, John Boy was making chokers, and then John Boy went to sleep and he was visiting with Angie, I believe. Q, And he got out of there and he stayed away from John JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 463 Boy, that's what he told you, isn't that true? A. That's correct. Q. And that after that he didn't do anything with the American Indian Movement, that's what he told you, isn't that true, sir? A. He said he stayed away from Theda, John Boy. I don't remember him saying anything about the American Indian Movement. Q. Well, he stayed away from the people that were involved in all of this, isn't that true? A. That's correct. Q. And when he spoke to you in July, he was speaking to you willingly, wasn't he? A. That's correct. Q. And when he spoke, that's July of 1995. When he spoke to you in 2003, he was speaking to you willingly, isn't that true, sir? A. That's correct. Q. Incidentally, when you first approach somebody about criminal activity, people often say they don't know what you are talking about, don't they, sir? MR. MANDEL: Objection, relevance. THE COURT: Overruled. A. Well, the first time he said he didn't know anything about it when we talked to him the first time, and then the JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 464 other two occasions he did cooperate and said he did know what happened. BY MR. RENSCH: Q. My question to you is, though, when you approach somebody, when they are the suspect of something, it's not unusual for someone to say hey, I don't know what you are talking about, is it, sir? MR. MANDEL: Objection again on the grounds of relevance. THE COURT: Overruled. A. Sometimes. BY MR. RENSCH: Q. Sometimes what? A. Sometimes the defendant will respond in that manner. MR. RENSCH: Okay, nothing further, thank you. REDIRECT EXAMINATION BY MR. MANDEL: Q. Mr. Rensch asked you about some testimony in the grand jury, do you recall that? A. Yes, I do. Q. At that time were you testifying as to the findings of Dr. Brown? A. Yes. Q. And he indicated that he didn't find any trauma on the body? A. Yes. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 465 Q. And that would include that he did not find the gunshot wound, correct? A. That's correct. MR. MANDEL: Nothing further, Your Honor. THE COURT: Anything further? MR. RENSCH: Nothing further. THE COURT: Thank you, Mr. Ecoffey, you may step down. Call your next witness. MR. MANDEL: No more witnesses. Your Honor, the United States would rest. THE COURT: Very well, defense may proceed. MR. RENSCH: I would like to reserve my right to make a motion, and at this time I would call David Price to the stand. THE COURT: Very well, you can make your motion after we have recessed for the evening. MR. RENSCH: Okay, thank you, Your Honor. DAVID PRICE, called as a witness, being first duly sworn, testified and said as follows: DIRECT EXAMINATION BY MR. RENSCH: Q. Please state your name for the record, sir? A. David Price, P-R-I-C-E. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 466 Q. How are you presently employed? A. I am a Special Agent with the Federal Bureau of Investigation. Q. How long have you been so employed? A. About 33 years. Q. What type of training do you go through to become a Special Agent with the FBI? A. I went through the basic course, I think that was three or four months back in 1971, and continued training now and then throughout the career. Q. I would like to direct your attention to the year 1975. Do you have that timeframe in mind, sir? A. Yes, sir. Q. How were you employed at that time? A. I was an FBI agent stationed here in Rapid City, South Dakota. Q. How long had you been stationed in Rapid City at that point? A. I think I was here in 1973. Q. As it relates to your duties as a Special Agent with the FBI, did those duties include cultivating informants? A. It did. Q. How so? A. Informants are used to tell you who does crimes, to warn you of crimes, and basically that is what informants are for. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 467 Q. Did you personally take part in cultivating informants or contacts within the American Indian Movement in 1975? A. Yes, sir. Q. In that regard in 1975, did you come into contact with informants who were working for the FBI against the American Indian Movement? A. I am sure I did. Q. Was one of the informants that you -- A. Sir, may I qualify one thing. Q. No, you can't. No. I have to ask you the questions, because otherwise it goes on for a long time. Did you know an informant named John Stewart? A. I don't know that John Stewart was an informant. Q. Did you know a John Stewart? A. I had contact with a John Stewart. Q. What year would that have been? A. 1975 or 1976. Q. Did you know an individual by the name of Anna Mae Pictou-Aquash? A. I met Anna Mae Pictou twice. Q. When did you meet her? A. I met Anna Mae Pictou the first time April 10th, 1975. Q. Where at? A. She was at the Ted Lame residence, which is just, I can't give you the exact mileage, but it is south maybe four JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A S-ioux Falls, South Dakota 57104 (605) 330-4877 PAGE 468 or five miles south of Oglala, South Dakota on the west side of the road, it was at that time. Q. When was the next time that you met her? A. I met her September 5th on the Rosebud Reservation. Q. At any of those points did you attempt to cultivate her as an informant? A. No, sir. Q. At any of those points did you ask her to become an informant? A. No, sir. Q. At any of those points did you ask her if she would provide information relative to the activities of the American Indian Movement? A. I asked her about a murder. Q. Where would that have been? A. The murder was of Jeanette Bissonette, occurred on March 26, 1975, four or five miles south of the Ted Lame place on the land belonging to a brother of the tribal president, his name was, Dick Wilson was the brother. Q. And what day would it have been that you attempted to get information from Ms. Pictou-Aquash? A. I met her on April 10th at the Ted Lame home. Q. In 1975 how many informants did you regularly deal with that were involved in the American Indian Movement? MR. MANDEL: Objection, relevance. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 469 THE COURT: Overruled. I am assuming this is kind of background, but move along on it. A. The informants were advising of crimes and not about the American Indian Movement. They advise of fugitives, advise of things like that, crimes. BY MR. RENSCH: Q. How many informants did you utilize in 1975? A. Very few. MR. RENSCH: I have nothing further, thank you, sir. MR. MANDEL: No questions, Your Honor. THE COURT: Thank you Mr. Price. Call your next witness. MR. RENSCH: The defense rests. Your Honor. THE COURT: Very well, I am going to discharge you for the evening now because we have some things to take care of out of the presence of the jury. I will want you to come back in the morning at, I am gauging time on things we have to do before you get back. At ten o'clock in the morning. I want you to not decide the case tonight, because now you know you have heard the evidence, but you have not had a chance to listen to the argument of the lawyers. The arguments of the lawyers are not evidence, I have already told you that, you know that. But they may be helpful to you in determining how you are going to look at the evidence and how you may apply the evidence and the facts as you determine them to be to the JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 470 law as I will give it to you in my instructions. I gave you some preliminary instructions at the beginning of the case, I have given you instructions at different times, normally limiting instructions, but some other instructions, too, during the course of the trial. I will give you instructions at the end of the trial which are much more detailed. You will have to pay attention to all the instructions, however, but you won't have those things until tomorrow, after I have given you all those things and you have heard the arguments, then you will good back and for the first time you can talk to each other about the case, and that's when you should be deciding the case and not tonight when you are by yourself. So don't do any research, I don't want you to read the newspaper or watch the news in case there is anything on about this. I don't want you to talk to your children or significant other or anybody else with regard to the case, and just have a good night's sleep, and we will see you then at ten o'clock tomorrow morning. Please stand for the jury. (Jury leaves at 4:30). THE COURT: The defense may make their motion. MR. RENSCH: At this time. Your Honor, I would move for judgment acquittal be entered as it relates to Mr. Arlo Looking Cloud on the failure of the government to prove up prima facie case of the crime charged. I would specifically request that the Court take notice of the depth of the JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 471 evidence as it related to the American Indian Movement prior to any events which were within a timeframe near this alleged crime. Seems to me that this started out to be a proceeding where this background of the American Indian Movement was going to have some nexus or connection to the offense charged as it relates to Mr. Arlo Looking Cloud, and it in no way had any nexus to him whatsoever. There was no reason to get into the events of the Custer riot, the events of other things that happened, the events of the FBI shoot-out in Oglala, all of those things, and I think that they put him in a disadvantage in front of this jury, and I would request the Court enter a judgment of acquittal. THE COURT: Alright, what does the plaintiff have to say? MR. MANDEL: Your Honor, I guess I don't know if there is an evidentiary ruling that the defendant is speaking about in terms of evidence that he thinks shouldn't have been admitted, but he really seems to be making the wrong argument for a motion of a judgment of acquittal. The question is whether or not there is a prima facie case present. There is such as to all the elements of this offense, and I could frankly go through the evidence in detail, but the Court has been sitting here, I don't think that that is necessary. There is a submissible case to go to the jury in this case. If the defendant didn't like the evidence that was being JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 472 presented, I guess he has the right to object to it and the Court can rule on those objections, but frankly that is not a basis for granting a motion for judgment of acquittal. So it is not even pertinent to this issue. Our position is simply that a prima facie case was presented, that we met our burden, and this case should go to the jury. THE COURT: Well, objections were made, I ruled on them, I think I was right, but the question aside from that is, though, whether or not there has been a prima facie case submitted, and I realize that's what the defense is saying, and there is a prima facie case that is a submissible case for the jury, and the case will go to the jury, and the motion for judgment of acquittal is denied. And I am not going to cite the evidence, but the evidence is sufficient to submit the case to the jury. Now counsel had asked for an hour apiece for argument. Once again, of course, that doesn't mean you have to use it, but that's up to you. I told you I would grant you that, which I will, and I do. Now with regard to the settling of the instructions, if you would, I would like you to wait around this evening, because I want to go over the instructions once more because I never finalize them until I am sure what the evidence is, and then I will give you then the instructions yet this evening. So I want you here at 9:00 in the morning and we will settle the instructions, and then we will argue starting at 10:00. You realize that my practice JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 473 is that I instruct after argument. I like the jury to go out having heard from me last as opposed to the impassioned pleas of counsel. So you have the right, though, to use the instructions, and you can put them up on the display system if you want, and the only thing is you use ones without authority on them so when a juror is looking at an instruction they don't know if it is one the defense proposed or the government proposed or one the Court just gave on its own anyway, which most of them are. Are there any questions? MR. RENSCH: I have no questions. I have a request, could I please have a copy of the initial instructions that you read to the jury as well, Your Honor? THE COURT: Yes. You can get them from the clerk. At least I think I gave them. If I didn't, I should have given them. I will file them now with the clerk and you can get a set of them from the clerk. You know, I made one, and I told both of you ahead of time, both sides ahead of time, I made one hand correction before I read them. Let me look at that and make sure it is on that copy, this is the one I actually read from. It is in pencil, I will make it in ink now. Anything else from the defense? From the government? MR. MANDEL: No, Your Honor. THE COURT: Thank you, see you at 9:00 in the morning, we are in recess. (Recess at 4:40 p.m.) JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #30 5A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 474 INDEX TO WITNESS DENISE MALONEY PICTOU DIRECT EXAMINATION BY MR. MANDEL .............. 293 CROSS EXAMINATION BY MR. RENSCH ............... 298 CANDY HAMILTON DIRECT EXAMINATION BY MR. MANDEL .............. 299 CROSS EXAMINATION BY MR. RENSCH ............... 318 JEANETTE EAGLE HAWK DIRECT EXAMINATION BY MR. McMAHON ............. 326 CLEO GATES DIRECT EXAMINATION BY MR. MANDEL .............. 333 CROSS EXAMINATION BY MR. RENSCH ............... 340 REDIRECT EXAMINATION BY MR. MANDEL ............ 342 RICHARD TWO ELK DIRECT EXAMINATION BY MR. McMAHON ............. 343 CROSS EXAMINATION BY MR. RENSCH ............... 356 JOHN TRUDELL DIRECT EXAMINATION BY MR. McMAHON ............. 380 CROSS EXAMINATION BY MR. RENSCH ............... 391 REDIRECT EXAMINATION BY MR. McMAHON ........... 405 RECROSS EXAMINATION BY MR. RENSCH ............. 406 ROBERT ECOFFEY DIRECT EXAMINATION BY MR. MANDEL .............. 408 CROSS EXAMINATION BY MR. RENSCH ............... 432 REDIRECT EXAMINATION BY MR. MANDEL ............ 464 DAVID PRICE DIRECT EXAMINATION BY MR. RENSCH .............. 465 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 475 INDEX TO PLAINTIFF EXHIBITS 1 Marked ............................ 422 1 Offered ...................... 423 1 Received ..................... 423 2 Marked ............................ 422 2 Offered ...................... 423 2 Received ..................... 423 3 Marked ............................ 422 3 Offered ...................... 423 3 Received ..................... 423 15 Marked ........................... 422 15 Offered ..................... 423 15 Received .................... 423 34 Marked ........................... 302 34 Offered ..................... 303 34 Received .................... 303 35 Marked ........................... 302 35 Offered ..................... 303 35 Received .................... 303 38 Marked ........................... 306 38 Offered ..................... 307 38 Received .................... 307 43 Marked ........................... 413 43 Offered ..................... 414 43 Received .................... 414 44 Marked ........................... 413 44 Offered ..................... 414 44 Received .................... 414 45 Marked ........................... 428 45 Offered ..................... 429 45 Received .................... 430 INDEX TO DEFENSE EXHIBITS F Marked ............................ 456 MISCELLANEOUS INDEX Government Rests .................... 465 Defense Rests ....................... 469 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 476 STATE OF SOUTH DAKOTA ) :SS CERTIFICATE COUNTY OF MINNEHAHA ) This is to certify that I, JERRY MAY, Court Reporter in the above-named Court, took the proceedings of the United States District Court, and the forgoing pages 1-473, inclusive, are a true and correct transcript of my stenotype notes. I FURTHER CERTIFY that I am not an attorney for, nor related to the parties to this action and that I am in no way interested in the outcome of this action. Dated at Sioux Falls, South Dakota, this 12th day of February, 2004. COURT REPORTER JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 *END OF DOCUMENT*