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The United States of America vs. Fritz Arlo Looking Cloud

Court Trial Transcripts

February 2004

Rapid City, South Dakota

The following pages are a duplication of the original court trial transcripts in the case of The United States of America vs. Arlo Looking Cloud.

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DISCLAIMER: The original document was automatically scanned and then automatically formatted by a Word program. 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 will be 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.

Court trial pages are grouped together in sets of 15 per web page.

June 15, 2004 footnote: Missing pages 1 and 101 ARE NOW POSTED.

INDEX OF COURT TRIAL TRANSCRIPTS:

PAGES 1 to 15

PAGE 1

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
*******************
*
UNITED STATES OF AMERICA, Plaintiff, *
*
-vs-

FRITZ ARLO LOOKING CLOUD, Defendant. *

* CR. 03-50020
* JURY TRIAL * VOLUME I

*
*******************

BEFORE: The Honorable Lawrence L. Piersol
Chief United States District Judge
For the District of South Dakota
Sioux Falls, South Dakota

APPEARANCES:

Mr. James McMahon
Mr. Robert Mandel
United States Attorney
Sioux Falls, South Dakota
Attorneys for the Plaintiff.

Mr. Timothy Rensch
Attorney at Law
Rapid City, South Dakota
Attorney for the Defendant.

PROCEEDINGS: The above-entitled matter came on for
hearing on the 3rd day of February, 2004
commencing at the hour of 9:00 a.m. in the
courtroom of the Federal Building, Rapid
City, South Dakota.

Proceedings recorded by mechanical stenography, transcript
produced by computer.

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

PAGE 2

(A jury was duly selected.)

(Court Reads Preliminary Instructions.)

THE COURT: That completes my preliminary instructions, and

counsel for the government may give opening statements.

MR. McMAHON: Ladies and gentlemen. On a December morning in

1975 a little red Pinto wagon pulled up to the edge of a road about

three miles north of the junction between Highway 73 and 44. The

driver of that little red car was Theda Clark, there were three

passengers in the car; the defendant, Arlo Looking Cloud, fellow

by the name of John Graham, and Anna Mae Aquash. After Anna

Mae was taken out of the car, she was walked by the defendant

and by Mr. Graham from the edge of the road out to the edge of

that cliff. All the way out there she was begging them not to kill

her. When they got to the edge of the cliff and she realized that

her pleas were to no avail, she asked to have time to pray. While

she was praying on the edge of that cliff she was shot in the back

of the head. Her body was either thrown or fell over the cliff, came

to rest right there where that white mark is. Stayed there for about

two and a half months until a rancher riding fence found it. After

Anna Mae was killed, the defendant, Mr. Graham, walked back to

the car and three people drove back to Denver. So who was Anna

Mae Aquash, why was she taken to that cliff to be killed, and how

did she get there?

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

PAGE 3

This is Anna Mae Aquash. Anna Mae was a member of the Mik'maq

Tribe from Canada. She was a mother of two young daughters.

She came to the United States to support the American Indian

Movement. She came down at a time that AIM was occupying

Wounded Knee. She joined the occupation and she stayed. She

spent the next two years attending AIM events, making friends

within the AIM organization. When she wasn't attending events

somewhere else around the country, she was often times on the

Pine Ridge Indian reservation. But at the same time she was

making friends. As we approached the year 1975 there started

to be rumors all through the AIM movement that Anna Mae Aquash

was a government informant. Portions of the AIM movement

within South Dakota had turned somewhat violent. There had

been riots at the Custer courthouse, Minnehaha courthouse in

Sioux Falls, the occupation of Wounded Knee when there was gun

fire exchanged between the occupants and federal authorities,

and there were rumors of many people possibly being

informants. But particularly Anna Mae. We are going to pick

up our story in June of 1975. There was an AIM national

convention held in Farmington, New Mexico. Hundreds of people

gathered from around the country, some of the leaders of the

AIM movement were there, Anna Mae was there, Dennis Banks, one

of the leaders, was there. There were many people there.

Along with Dennis Banks was a young lady by the name of Kamook

Nichols. Kamook finished high school in 1927 at seventeen

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

PAGE 4

years old and following that she entered in to a relationship

with Mr. Banks, and she traveled with him and the two of them

eventually had four children together. They were together in

Farmington. During this national convention there was a

general topic of conversation that Anna Mae was a government

informant. She was confronted down there with the possibility

that she was an informant, she was actually threatened down

there. She denied it. And she was not. After the convention

ended, the participants went back to their various homes.

There were a number of them that came back to South Dakota to

the Pine Ridge Indian reservation, and there was encampment at

a place called Jumping Bull on the Pine Ridge Indian

reservation. On June 26, 1975, two FBI agents by the name of

Coler and Williams were following someone they believed to be

a fugitive, and they found themselves at that encampment.

They came under fire and they were shot and killed. This

escalated the tension immensely between law enforcement and

members of the AIM movement. In the next month, July of 1975

there was a trial in Custer, South Dakota. Dennis Banks was

on trial for his participation in the courthouse riots down

there. Mr. Banks was convicted during that trial, he was let

out on bond pending his sentencing. He went back to the Pine

Ridge Reservation and was waiting around there. He was

supposed to be sentenced approximately four to six weeks

later, something like that. When it was time for him to go

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

PAGE 5

back for his sentencing he made a decision that he was not

going to go back to be sentenced, he decided to run. Kamook

went with him. On September 5, 1975, law enforcement

conducted a raid at a place called Crow Dog's Paradise which

is on the Rosebud reservation. There were a number of people

arrested during that raid and charged with weapons and

explosives violations. Anna Mae Aquash was one of those

people. The people arrested were taken to Federal Court in

Pierre, South Dakota for an appearance. Anna Mae appeared,

she had a court appointed lawyer by the name of Bob Riter from

Pierre. The Judge let Anna Mae out on bond, and she was

supposed to come back on November 10th. After Anna Mae was

out on bond she traveled to California. She stayed with a

friend of her's by the name of Mathalene White Bear. She and

Mathalene had become acquainted through being together at

different AIM organizational events. Mathalene was a young

woman at the time, twenty years old, she was still living at

home with her parents, and Anna Mae stayed with them for a

week or two. During that time Anna Mae shared with Mathalene

that she was - -

MR. RENSCH: At this point I object, getting in to

argument that is inadmissible evidence.

THE COURT: We will see if it is admissible. It is

the attorney's expectation that the evidence will be admitted,

I can't rule on it yet because the evidence hasn't been

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

PAGE 6

presented. So I am not going to sustain the objection,

because I don't know at this point, but it is supposed to be.

If it isn't, I'm sure we will hear about it if it isn't

admitted, proceed.

MR. McMAHON: Thank you. Your Honor. Anna Mae

confided in Mathalene that she had been confronted about

being an informant. She was very fearful for her life. She

was afraid of the FBI, and she was afraid of different

factions within AIM. She told Mathalene that she was

concerned about she may be killed. She received a telephone

call while she was there, she told Mathalene she was leaving.

Mathalene tried to talk her out of it, but Anna Mae said she

was going to go. She met up with a man by the name of David

Hill, and they drove a motor home from Los Angeles back to

Chadron, Nebraska. They parked the motor home there and made

their way up to the Pine Ridge Indian reservation. We are now

approaching Columbus Day, 1975, October 12. There was a

get-together on the Pine Ridge. Mr. Banks was back for the

meeting, Leonard Peltier was there, David Hill was there, Anna

Mae was at this meeting, and Kamook Nichols was at the

meeting. And there may have been others. A plan was hatched

whereby they were going to make some home made bombs and plant

them at utilities in Pine Ridge. Leonard Peltier and David

Hill made Anna Mae participate in that so her fingerprints

would be on the bombs. So the next day when they were planted

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

PAGE 7

they made her participate in that. They then made their way

back to Chadron and picked up the motor home, Mr. Banks,

Leonard Peltier, Anna Mae, and Kamook Nichols, Kamook's

sister, and one or two others were in the motor home. They

were taking Anna Mae with them because they wanted to keep an

eye on her. They traveled from Chadron, Nebraska to the state

of Washington where they camped for two or three weeks.

During that time there were more accusations, more

conversation about Anna Mae being an informant. She was not

allowed to go anywhere alone. When they left that spot they

started on the road, they were traveling down a highway in

Oregon, a Highway Patrolman saw the motor home, he knew who

was in the motor home, and he stopped it. He ordered the

occupants of the motor home out. All of the occupants got out

of the motor home except Mr. Banks. Mr. Banks decided to take

off in the motor home and an exchange of gun fire followed

between the gun fire and the motor home. Mr. Banks got away

during the gun fire, Mr. Peltier got away. Anna Mae was

re-arrested, Kamook Nichols was arrested, there were a couple

other people there that were following in a car that were

arrested. Anna Mae and Kamook Nichols were put in a jail cell

together. Now they hadn't been spending much time together.

They were friends from 1973 when Anna Mae showed up until June

of '75 in Farmington, New Mexico, they became friends and

spent quite a bit of time together. While they were in

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

PAGE 8

Farmington, New Mexico, Kamook learned that Anna Mae Aquash

had also fallen in love and entered in to a relationship with

Mr. Banks. So during the summer months and through that fall

there was not much contact between the two of them. But now

when they were alone together in the jail cell they began

visiting again. And Anna Mae also shared with Kamook that she

was scared. They were in jail up there for about two weeks,

and then they were brought back to this part of the country.

Kamook was taken to Kansas where she was wanted because she

had missed a court date while they were traveling in the motor

home. Anna Mae was taken to Pierre, South Dakota, because she

had missed her November ten court date. She appeared in court

on November 24. This was the day before her trial on the

weapons and explosive charges was set to begin. She met with

her court appointed attorney. When she appeared in court,

even though she had just missed a court appearance, the Judge

let her out on bond again. During the night she was picked up

by two people within the American Indian Movement, Evelyn

Bordeau and her husband Ray Handboy. They transported her to

Denver. She was taken by Theda Clark to the home of Troy Lynn

Yellow Wood. Ms. Yellow Wood had an apartment there and it

was used for members of AIM as more or less of a safe house

when they were on the run. She was dropped off there with

Theda Clark and Michelle Wood to keep her there safe. She was

not initially being held against her will. She spent

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

PAGE 9

Thanksgiving there. She spent in to December there, but she

was very scared while she was there. The first part of

December a call came from South Dakota down to Denver, by

Angie Janis. Said that Anna Mae was an informant, she was

wanted back in South Dakota. A meeting was convened at the

home of Troy Lynn Yellow Wood. Theda Clark was there, and of

course Troy Lynn Yellow Wood was there. Angie Janis was there,

there were some members of the Crusade for Justice there,

which was I believe it was a Chicano organization out of

Denver that had close ties with the AIM people. And there

were other people there who have not yet been identified. The

defendant Arlo Looking Cloud was there, and John Graham was

there, and their job during this meeting was they kept Anna

Mae Aquash in a separate room under guard. When the meeting

ended, Theda Clark came to the room and said let's go. They

got Anna Mae up and they tied her wrists together. They

started escorting her out of the house, they ran in to Troy

Lynn Yellow Wood. Anna Mae was crying, she said I don't want

to go. If I go back to South Dakota you will never see me

alive again. Troy Lynn Yellow Wood had a conversation with

Theda Clark, Theda Clark said she is going one way or the

other. The defendant, Mr. Looking Cloud, and John Graham

marched her out of the apartment, put her in the back, the

hatch end of that little red Pinto car that was owned by Theda

Clark, tied up, then the two of them got in the car along with

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

PAGE 10

Theda Clark. They drove all night to Rapid City. Early in

the morning they arrived and they went to an empty apartment

that was owned by Thelma Rios, another AIM member in Rapid.

The defendant, Mr. Looking Cloud, and John Graham kept Anna

Mae Aquash under guard all day. Theda Clark was in and out of

the house. Some point late in the afternoon Anna Mae was

taken to a house that had been set up for what was called the

Wounded Knee Legal Defense-Offense Committee. They used it to

coordinate the defense of people that had been charged with

criminal cases, or AIM members. There was another meeting at

that time involving Anna Mae, she was seen to be visibly

upset. When they left that house, the defendant, Mr. Graham,

Theda Clark again took Anna Mae, they put her back in the

little red Pinto, again bound up, tied up. The defendant was

now driving and they headed south toward the Pine Ridge Indian

reservation. They first went to a small town, Allen, South

Dakota, on the Pine Ridge reservation. About three or four

hundred people live there, it was late at night by now, about

eleven o'clock at night. They showed up at the house of Cleo

and Dick Marshal. The Marshals were in bed already, they woke

them up, went into the house. They left Anna Mae at the

kitchen table with Cleo. The defendant, John Graham, Theda

Clark and Dick Marshal walked into the next room and shut the

door. A few minutes later they came out. Dick Marshal said

to his wife they want us to keep her here for a while. Cleo

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

PAGE 11

said I don't like the looks of this, no way. So the

defendant, Mr. Graham, Theda Clark take Anna Mae, put her back

in the car again and now they are on their way to Rosebud.

They stop at a house in Rosebud in the wee hours of the

morning. This time just Theda Clark and John Graham go in the

house, and the defendant stays in the car and guards Anna Mae.

While they are in that car, she begs him to let her go. She

tells him she knows she is going to be killed, and she begs to

be set free. The defendant refuses. Theda Clark and John

Graham come out of the house, they get into the car, they

start driving north. North toward Wanblee. Soon they cross

the intersection of Highway 44, they are going north on

Highway 73. Three miles approximately north of that

intersection is where they pulled over. Now as I said to you,

Anna Mae's body laid at the bottom of that cliff until late in

February. Roger Amiotte, a rancher was out riding fence,

found the body and reported it immediately. The body had been

there long enough that it wasn't in very good shape. An

autopsy was done by a doctor by the name of Dr. Brown out of

Scotts Bluff, Nebraska. In a nutshell, that autopsy was

botched. Dr. Brown found that the cause of death was

exposure. Didn't even find the bullet hole in her head.

Commented about the weight of the kidneys, but it turns out

later that the kidneys hadn't ever been removed from the body

to be weighed. Because of the condition of the body, they

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, tt305A
Sioux Falls, South Dakota 57104 (605) 330-4877

PAGE 12

couldn't take fingerprints there, so they severed the hands

and sent them back to the lab in Washington, D.C., the FBI

lab. Approximately two weeks later the report came back Anna

Mae Aquash. At that time the FBI and the family of Anna Mae

both started down the same road to obtain a Court order to

have the body exhumed and another autopsy done. That was

done. There was discussions about having two pathologists at

the autopsy, what ended up happening is the pathologist that

was obtained by the Aquash family is the one that did the

second autopsy because the FBI said we are fine with that.

Dr. Garry Peterson from Minneapolis came and did that second

autopsy. He didn't realize even when he arrived that he was

going to do the autopsy. On initial examination of the body

he noticed right away there was what he believed to be a gun

shot wound to the back of the head. He ordered X-rays of the

skull which clearly slowed there was a bullet lodged in the

upper left part of her skull. He completed the autopsy and

found that she had been shot in the head and killed. An

investigation pursued, hundreds and thousands of hours spent,

but because of the tensions of the time between law

enforcement and AIM, there wasn't much cooperation going on.

So the case was not being solved. Years later as the years

went on bits and pieces came in, and finally people started tc

be willing to talk about this. Starting in approximately 1988

the defendant, Mr. Looking Cloud, started to talk to some

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

PAGE 13

people about his involvement in Anna Mae's murder. He made

statements to a number of people. We are going to bring those

statements to you. You are going to hear that the statements

are inconsistent in various areas depending on who he is

talking to. You are going to hear Mr. Looking Cloud profess

his ignorance that he didn't know what was going on. After

you compile and listen to all those statements and the other

evidence, it is going to show you through his own words from

the time in Denver when Anna Mae Aquash was taken, bound and

put in to that little red Pinto, when she was hauled bound and

tied up to Rapid City, when she was hauled bound and tied up

down to the Pine Ridge Reservation, to the Rosebud reservation

and out to that cliff on the south edge of the Bad Lands where

she was killed, Mr. Looking Cloud was there every step of the

way. And when we are done with the evidence, ladies and

gentlemen, we are going to ask you to find him guilty. Thank

you.

THE COURT: Counsel.

MR. RENSCH: Thank you, Your Honor. Arlo Looking

Cloud didn't kill anybody. Arlo Looking Cloud the evidence in

this case will show didn't help kill Mrs. Pictou-Aquash. Arlo

Looking Cloud today, this year, is a fifty year old man. In

1975 he was a 22 year old young adult. He was born in South

Dakota, he lived on the reservation for a period of time, he

lived in Denver for a period of time, and he spent his young

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

PAGE 14

adult years in Sante Fe at an art school. You will find that

this is a case of fate. You will find through the evidence in

this case that what Arlo Looking Cloud became embroiled in was

simply being in the wrong place at the wrong time. You see in

December of 1975 Arlo lived in a place near the projects down

in Denver. He lived with a woman by the name of Charlotte

Zephier. He had a job selling art, making paintings, things

of that nature. He had a little boy. Up to that point in his

life he had had some problems with alcohol and with drugs, but

he was doing well. And this weekend in early December of 1975

his path would change. You see, the woman who lived with him,

Charlotte Zephier, was going on a trip that weekend, she was

going to Nebraska and taking his son to Nebraska to visit some

relatives. And what does Arlo do, the 22 year old young man

that he is, he goes out on the town. He goes out on the town

with a friend who was named Joe Morgan, and he goes drinking

with this other young adult down in the streets of Denver,

down in the bars of Denver, down in the haunts of Denver, and

he drinks all night. And he comes home to his empty house,

his woman is not there, his live-in girlfriend is not there

with their child, and he sleeps off his hangover. And he

sleeps all day. He sleeps all day, and he wakes up in the

afternoon with a splitting headache, and little did he know

his path was going to change. You see he gets out of his bed

and he puts his clothes on and he decides to go downtown again

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

PAGE 15

and try to find his friend Joe Morgan, and that's what changed

his fate. When he dressed that evening, little did he know

that Joe Morgan wouldn't be over at Yellow Wood's house. Troy

Lynn was a friend of Arlo's, Troy Lynn was a friend of many

people. Troy Lynn lived close to Arlo, so when he walked over

to his house that night in late December, his intent was not

to kill somebody or help premeditate the end of a human being,

his intent was to go down drinking that day because he had a

hangover, he appeared on the steps and knocked on the door to

see if his friend Joe Morgan is there and Troy Lynn doesn't

answer. Theda Clark is there. Theda Clark is a fifty'ish

Indian woman at this point in her life who owns a bar in

Colorado, Arlo had known her from before. He had driven for

her from time to time, she would give him some drinks, let him

drink in her bar, things of this nature. Theda on this night

says to young Arlo, hey, we want you to drive up to Rapid City

for us. Arlo doesn't really want to drive up to Rapid City

for her. You will find evidence in this case that Theda

Clark, well, she was older, she was pushy, and when she asked

Arlo to drive to Rapid City, Arlo said okay, I will do it.

His friend Joe Morgan wasn't there, and he was would just

drive to Rapid City for Theda. As he steps in to the house of

Yellow Wood's they don't really let him go many places in the

house, they shoo him right down to the basement. And as he is

walking down those basement steps little does he know he is

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

Index

PAGES 16 to 30

PAGE 16

about to meet two people that will change his fate for ever.

As he is walking down those steps he doesn't know what is

about to occur because no one has ever asked him or said

anything was going to happen there, or asked him to come over

there for any specific purpose, and as he is walking down

those steps he sees an individual he had never met before by

the name of John Graham. The evidence in this case will show

that John Graham was known also as John Boy Patton and was a

friend of Theda Clark's. There was a young woman laying on

the couch under a blanket and they don't introduce her to

Arlo. Arlo meets John Graham, also known as John Boy, they

converse, don't talk really about much, and suddenly this John

Graham is talking about a rope, and Theda is talking about a

rope, and John Graham takes this young woman off of the couch,

has her get up, and ties her hands behind her back. Arlo

Looking Cloud doesn't know if they are together, doesn't know

what their relationship is, doesn't really know what is going

on, but he knows enough not to ask questions and not to talk

to them about it. Well, John Boy leads this young woman, who

turns out to be Anna Mae Pictou-Aquash, up these steps on this

night in December of 1975. Arlo through the years has made

statements about this, and you will find in this case that for

thirty years approximately Arlo has been, well, not a

productive member of society, he's lived on the streets, he

has been drunk, he has used drugs, he has abused his body, and

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

PAGE 17

he has done many things, I think that the evidence will bear

out, that affect his memory and his ability to recall events

and his ability to communicate about events, but that night

this 22 year old boy who was there walked up those stairs and

yes, he thought something was amiss, and he didn't do anything

to stop it. And as they go out into the car this poor lady is

put into the back of the car and Arlo drives. And he doesn't

make any excuses about driving. But he thought that they were

just going to Rapid City. Theda mentioned something about

this girl talking too much. Nothing about we are going to

take her to Rapid and she is going to be interrogated, nothing

about we are going to take her to Rapid and she is going to be

killed, nothing about please help us kill this woman in

furtherance of the movement. So they drove all night to Rapid

City. Arlo drives some of the time, he sleeps some of the

time. There isn't much conversation in this car on the way

up, and Arlo knows something isn't fitting right here, but he

is not asking questions, and Theda and John Boy act as though

they know what is going on, act as though they heard something

about what might happen, but they don't talk to Arlo about it.

They get to Rapid City in the early morning hours and they

drive to an apartment that is up by the Mall out by the

highway, Knollwood Heights. This apartment is rented by a

woman that we find out later is named Thelma Rios. At the

time Arlo did not know whose apartment it was, they get in to

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

PAGE 18

the apartment, there is no furniture in the apartment, someone

is either moving in or moving out of the apartment. John

Graham sleeps in a room with Ms. Pictou-Aquash, Arlo sleeps on

the floor, there is no furniture in there, they sleep for a

period of time. Theda Clark, the fifty'ish Indian woman who

asked Arlo to drive up there in the first place does not stay

in this apartment, and they just sleep there. Arlo wakes up

at some point in the day, we don't know just exactly what time

of the day, and he takes the car down to put gas in it. And

as Arlo is at the gas station he runs in to a person that he

knew from living on the reservation by the name of Tony Red

Cloud. And this Tony Red Cloud asks Arlo to come over to his

house. Arlo goes over to his house, spends some time with

him, eats with him, don't know whether they drink or not, but

they spend a period of time together. Arlo goes back to the

Knollwood Heights apartment, and Theda and John Boy are mad at

him because he is gone with the car. As he gets back they say

we have to go to the reservation. And everybody gets in the

car, they drive down to the reservation, Arlo drives for a

period of time, doesn't drive all the way, remembers stopping,

remembers sleeping a period of time, remembers switching

drivers, ultimately ends up out in front of a house in Rosebud

near the hospital. And at this time he is with Anna Mae, he

is with Ms. Pictou-Aquash, and John Boy Patton and Theda Clark

go in to this house, they don't tell Arlo what they are going

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

PAGE 19

in for, Arlo doesn't know what they are going in for. At this

point he doesn't remember Ms. Pictou-Aquash saying anything

about begging to be let go at that point. I guess the

evidence will have to bear itself out on that. But

none-the-less there's never been any discussion about anybody

killing anybody up to that point in time. Up to this point in

time they stopped several places in Rapid City, stopped on the

side of the road and places to get gas and things like that.

And John Boy and Theda come out of this house and Arlo is

thinking, well, maybe I can finally get back to Denver. They

come out, they get in this Pinto, they drive toward Kadoka.

Arlo doesn't know what they are driving toward Kadoka for. He

is wanting to go back to Denver, he is not driving the car,

Theda is driving the car. John Boy is there, and they act as

though they know what is going to happen, but nobody talks

about it. The car pulls on that lonely highway going north

toward Kadoka, straight up on the map to Kadoka, and Theda

Clark pulls a U-turn and goes back and forth several times and

stops on the side of the road. As she stops on the side of

the road there is no conversation about what is going to

occur. As she stops on the side of the road John Boy Patton

gets out of that car, John Boy Patton who is bigger than Arlo,

John Boy Patton tells Ms. Pictou-Aquash to get out of the car

and begins leading her off in to the ditch. At this point it

is either John Boy or Theda say to Arlo come on, get out here.

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

PAGE 20

Arlo gets out of that car, he does not know what is going to

happen, he starts to walk up there, he doesn't march her up to

the side of the cliff, he doesn't grab her arm. He doesn't

help take her to the cliff. He is following along not knowing

what is going to happen, and he is thinking they are going to

let her go way out here. Then he hears her start to pray, and

in his mind he starts to think we are going to pray. Bam, at

that point John Boy Patton pulls out a gun and shoots this

woman in the back of the head. Arlo reels from it, Arlo did

not know that was going to happen. Arlo has never met this

man before. She falls over this cliff, the white shale cliff

of the Bad Lands, she falls 25 feet down into the bottom of

this ravine. The photo you see here was taken years later,

but in the pictures you see in the evidence in this case it is

white shale, it is clear, free of vegetation. And Arlo

standing there on this edge of this ravine, and John Boy

Patton turns around and he looks at him and he has a gun, and

what does this young 22 year old man think of? What does he

do? He doesn't know what is about to happen. He says to

Graham give me the gun. Graham reaches out, hands him the

gun. And Arlo fires the gun over the ravine until the gun is

empty, and he did it because he was afraid this man who just

put a bullet in this woman's head would do the same to him.

And he hands the gun back to him, relieved that the gun is

empty. As he hands the gun back, they walk back to the

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

PAGE 21

vehicle. They get in the vehicle. They start going back to

Denver. They stop at a bridge and John Boy Patton, John

Graham wants to bury the pistol. Arlo wants to help bury the

pistol, because if John Graham doesn't have a pistol, then no

one else will get shot. They go down below the bridge and

Arlo helps dig that hole and they bury that pistol, and they

drive to Denver. When they get to Denver Arlo Looking Cloud

falls off the face of the earth as it relates to the American

Indian Movement. When they get to Denver he stays away from

the American Indian Movement. While he lived close to Troy

Lynn, and we will see her, and she is a friend of his and had

been a friend of his prior to that time, and while he may see

Theda from time to time because they live in the same town, he

stays away from the American Indian Movement. You will hear

evidence in this case that on the other hand, Mr. Graham, John

Boy Patton had a meteoric rise in the American Indian

Movement, and you will hear evidence in this case he was sun

dancing with the National AIM president, and you will hear

evidence in this case that he actually, well, he stayed with

the Movement. The story doesn't end there. The story doesn't

end there. The story also picks up in 1994. In 1994 when

Arlo Looking Cloud sits down with the FBI, sits down with the

BIA, sits down with a lawyer, and tells them what happened,

and at the end of this long interview when Arlo Looking Cloud

told the authorities how John Graham executed Anna Mae, Arlo

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Sioux Falls, South Dakota 57104 (605) 330-4877

PAGE 22

is released just to go right back out on the streets and be a

street person. You will hear evidence again that the

following year, the following year in the summer of 1995 this

man, Arlo, five foot six and a hundred fifty pounds is

approached again by the authorities, and they asked to take

him out to the scene near Kadoka and to the various places

that he traveled in this ever changing day of fate, and this

crossroads of his life, this December, 1975 that changed his

existence for ever. And what does Arlo Looking Cloud do, he

goes with them and he explains to them just exactly how John

Graham executed this woman that Arlo had never met before. At

the close of this case I will be asking you to decide the main

issue in this case. Which is whether or not the government

can prove beyond a reasonable doubt that Arlo Looking Cloud

aided and abetted a murder and had the intent for somebody to

die. I will ask you, too, to look at his words and understand

that a young man who was merely present at something so

horrible as a murder is not responsible in the way the shooter

is. Thank you.

THE COURT: Call your first witness.

MR. McMAHON: Call Roger Amiotte.

ROGER AMIOTTE,

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

said as follows:

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

PAGE 23

DIRECT EXAMINATION BY MR. McMAHON:

Q. Roger, would you tell the jury your name, please?

A. Roger Amiotte.

Q. You can sit back a ways from that mic. Where do you

live, Roger?

A. I live eighteen miles south of Kadoka, or ten miles east

of Wanblee.

Q. What is your occupation?

A. Pardon?

Q. What do you do for a living?

A. I am a rancher.

Q. How long have you ranched?

A. Since I was seventeen.

Q. Did you ranch in that area during February of 1976?

A. Yes, I did.

Q. During the February of 1976, did you have an occasion to

discover a body on your land?

A. Yes, I did.

Q. Would you tell the jury how that happened?

A. Oh, I was getting livestock out on the highway which

adjoined my pasture, and I was checking fences, and with a

plan of extending a fence in to a Bad Land wall. When I

rounded the curve, rounded the curve in a draw or a gully, and

discovered a body.

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

PAGE 24

Q. Was that body laying at the bottom of a cliff?

A. Yes, it was.

Q. What did you do when you discovered the body?

A. I immediately returned to my house, which is a mile

away, and called the Tribal police.

Q. Then did they come to your house?

A. Yes, they did.

Q. Did you take them out to where the body was?

A. Yes, I did.

MR. McMAHON: Your Honor, do you want me to ask

permission to approach each time?

THE COURT: No, you can approach.

(Exhibit 4 marked For identification.)

BY MR. McMAHON:.

Q. Mr. Amiotte, I hand you what's been marked Exhibit 4,

Can you tell me what that is?

A. That would be the body that I discovered.

Q. Is that a picture of the body as you actually saw it

there that day when you first found it?

A. Yes, it is. As near as I can tell that would be.

MR. McMAHON: Offer Exhibit 4, Your Honor.

MR. RENSCH: No objection.

THE COURT: Exhibit 4 is received.

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

PAGE 25

MR. McMAHON: May I put this on the screen, Your

Honor?

THE COURT: You may.

BY MR. McMAHON:

Q. Mr. Amiotte, can you see the picture on the computer

next to you?

A. Yes, I can.

Q. Is that the same picture you just identified as Exhibit

4?

A. Yes, it is.

Q. Last year did you have an occasion to show Mr. Bob

Ecoffey where that body was located when you found it?

A. Yes, I did.

(Exhibit 8 marked For identification.)

BY MR. McMAHON:

Q. I am going to hand you Exhibit 8. Is that a picture

that shows part of the land that you ranch?

A. Yes, it does.

Q. Does it also show where the body was located?

A. Yes, it is accurate.

Q. Did you in fact take Mr. Ecoffey out there to show him

where the body had been located?

A. Yes, I did.

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

PAGE 26

Q. And you see a little white area in that photograph?

A. Yes, sir.

Q. Is that where the body was located?

A. Yes, it is.

Q. Let me ask you, Mr. Amiotte, is that land within the

confines of the Pine Ridge Indian Reservation?

A. Yes, it is.

Q. Is it land that is held in trust?

A. Yes.

Q. One more thing. In that picture I think if you look at

the back of it, it was taken in August of 2003?

A. Yes, sir.

Q. Does that picture accurately depict the land as it

looked back in 1975?

A. Well, not exactly, because owing to erosion, natural

erosion will, the cliff or the bank at the bottom where she

was laying is now, or is now less vertical than it was at that

time.

Q. So that cliff isn't quite as steep now?

A. Pardon?

Q. The cliff isn't quite as steep now as it was?

A. No, it isn't, it is more of a gradual.

Q. Other than that, is it a pretty accurate depiction of

what the land looked like in 1975?

A. Yes, it is.

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

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PAGE 39

names, but there was a young lady, a white lady who worked as

like an X-ray technician that worked there at the IHS

hospital, and I specifically asked if they could do an X-ray.

MR. RENSCH: Objection, hearsay.

THE COURT: No hearsay yet, but I suspect we are

getting to hearsay. So we will see. But not yet. So the

objection is overruled at this point. Go ahead.

BY MR. MANDEL:

Q. Was it possible to do an X-ray that day?

A. No.

Q. Why was that?

A. I was told the machine was broke. X-ray machine.

Q. So no X-ray was performed at that initial autopsy?

A. No.

Q. What took place after the autopsy, sir?

A. Right after the autopsy there was discussion about the

identification and what could be done to determine

identification, what could we do at that time. We talked

about that.

Q. Do you remember who was involved in that discussion?

A. Another FBI agent, maybe two FBI agents and myself.

Q. Was the doctor involved in that at all, sir?

A. I think the doctor was standing by waiting for

instructions from us.

Q. Was some decision reached as to an action to take to

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PAGE 40

effect the identification?

A. Yes.

Q. Do you know who made that decision?

A. The actual decision to do that was kind of a joint

agreement between all of the investigators that were there,

the FBI and myself. We decided that we should take the hands

from the corpse so that we can try to get some identification.

Q. Was that a procedure you were familiar with?

A. Yes. At that time that was probably the only way that

we were going to be able to find some identification through

the fingerprints.

Q. Was there some reason that the hands couldn't be

fingerprinted there?

A. Yes, that was part of the discussion. The hands were so

shriveled up, black, they were like shriveled up, dried up, no

possible way we could take fingerprints then, they would have

to be done in a laboratory or something.

Q. Did the doctor then remove the hands from the body?

A. At our request he did.

Q. Then what was done with them?

A. They were placed in a jar with like I believe it was

formaldehyde or something, and I took the jar.

Q. What did you do with them then?

A. He gave the jar to me, and then I in turn handed it off

to an FBI agent, and that was their person there that day for

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Sioux Falls, South Dakota 57104 (605) 330-4877

PAGE 41

him to see if he could get it to a laboratory for

identification purposes.

Q. After the, you know that agent's name, sir?

A. Yes, I believe.

Q. Who would that have been?

A. It was Don Dealing.

Q. After that action was taken, then what happened

regarding the body, sir?

A. Repeat that question again?

Q. What did they do with the body after the autopsy, if you

know?

A. That day after the autopsy was over I had an emergency

back in Nebraska, so I left the next day. As far as I knew

from my recollection was when I left that day that body was

still there at the hospital.

Q. It was with the intentions to keep it there until the

identification was made?

A. Yes.

Q. Is that what in fact happened, if you know?

A. I left for several days for an emergency home visit. I

live in Nebraska down about five hundred miles away. And then

I came back to the reservation at Pine Ridge about a week

later, so a lot of things did transpire while I was gone that

I wasn't aware of.

Q. Were you involved with the investigation of this case

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PAGE 42

further on after the body had been identified?

A. After that I believe the FBI took the major role in

conducting further investigation in to it, but that was all of

it, I did that time.

Q. That pretty much the end of it for you?

A. Yes.

MR. MANDEL: No further questions, thank you.

THE COURT: Cross examination.

MR. RENSCH: Thank you, Your Honor.

CROSS EXAMINATION BY MR. RENSCH:

Q. Good afternoon, sir.

A. Yes, sir.

Q. You have a pretty good recollection of all this?

A. It's been a lot of years, I have some recollection of

it, yes.

Q. You find that through the years you forget some of it?

A. That's possible.

Q. What does it mean when you process a crime scene?

A. It means we look for evidence and we document everything

that we see.

Q. You look for clues to try to figure out what happened,

don't you, sir?

A. Yes.

Q. And you looked for clues to try to figure out what

happened in the immediate vicinity of this body, didn't you,

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PAGE 43

sir?

A. Yes.

Q. You actually, did you actually help move the body, turn

it over to take the photograph of the hand?

A. Did I actually move the body?

Q. Yes?

A. No, I didn't.

Q. Who moved the body so that the photograph of the hand

could be taken?

A. I believe it was -- see there were police officers at

the scene, too. I believe that they are the ones that sort of

moved the body over so I could get the picture.

Q. You didn't just let anybody who wanted to come in to

that area where the body was, did you, sir?

A. No.

Q. Why not?

A. Because it was basically a crime scene.

Q. Why would it be important to keep people out of a crime

scene?

A. So that we can retain, or find evidence and keep it.

Q. You wouldn't want people walking around that body

because they might step on something, or cover it up, or

change it so that the evidence wouldn't be preserved, would

you agree?

A. Yes.

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PAGE 44

Q. Did you examine the area, the immediate ground around

the body?

A. Yes.

Q. Did you note anything unusual about the ground around

the body?

A. Nothing unusual, no.

Q. You didn't find any bullet holes?

A. No.

Q. You didn't find any ricochet marks or anything like

that, did you, sir?

A. No.

Q. You didn't find any rope any place?

A. No.

Q. These strands of hair, where did you find the strands of

hair?

A. As I said, right off the embankment, coming off the

embankment, about halfway down the embankment.

Q. So they were about halfway down the embankment laying on

the dirt there?

A. They were like hanging down, you know, they were just.

(indicating).

Q. Did you ever try to get a metal detector out there to

see if you could detect any metal?

A. I never had a metal detector.

Q. You didn't find anything up above because it was grassy

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PAGE 45

up there, isn't that so, sir?

A. Well, how do you describe grassy, what do you mean?

Q. Well, there was grass up there, so there weren't foot

prints up there?

A. Well, there was sort of grass up there, but there was

ground. I don't know what you describe the ground like unless

you have been out there. It wasn't all full of grass, it was

dirt there. Dirt ground.

Q. And the ravine that this poor woman fell in to, that

wasn't full of vegetation, was it, sir?

A. No.

Q. It was dry dirt down there, wasn't it?

A. Yes, appeared to be.

Q. What color was the dirt?

A. Sort of brownish. Brownish colors, you know, different

shades of brown.

Q. Would you say light colored dirt?

A. It's possible it could have been light, different just

colors of dirt.

(Exhibits A - E marked For identification.)

Q. I show you Defendant Exhibits A through E, these are

blow ups of photographs you took. Look at them and tell us if

they are?

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Sioux Falls, South Dakota 57104 (605) 330-4877

Index

PAGES 46 to 60

PAGE 46

A. Are these Polaroid pictures?

Q. I don't know.

A. I can't tell if they are Polaroid or not. I know I took

Polaroid and 35 millimeter, but I did take pictures of the

body like this, yes.

Q. So that would fairly and accurately depict the scene

that were you attempting to preserve by taking those

photographs, would you agree, sir?

A. Yes.

MR. RENSCH: I move admission of Defendant's

Exhibits A through E, Your Honor.

MR. MANDEL: May I see them?

MR. RENSCH: Yes.

MR. MANDEL: No objection.

THE COURT: Exhibits A through E are received.

BY MR. RENSCH:

Q. How far out from around the body did you look for

evidence?

A. Probably maybe around the entire area. Quite a ways.

We went, if I remember, it was like we did a kind of a walking

grid search all around on the upper part, about from there to

the highway back and forth numerous times like in a pathway

trying to find something that might be evidence from the

highway to where the edge of the ravine was.

Q. How about down in the ravine itself, did you likewise

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PAGE 47

search the area of the ravine?

A. Yes, I think I and some investigators looked around that

entire area, around the body, and trying to find anything that

we could.

MR. RENSCH: Nothing further, thank you.

THE COURT: Redirect.

REDIRECT EXAMINATION BY MR. MANDEL:

Q. Just so I am clear, Mr. Merrick. You examined the scene

both at the top of that Bad Lands wall there and at the bottom

where the body was found, correct?

A. Yes, I went up to the top and I looked down and I looked

down, I looked up, I looked as much as I could.

Q. The body wasn't discovered until February 24th, is that

correct, sir?

A. Yes. Right in that neighborhood, yes.

Q. Here is my question. Is it possible as you are up on

the road there on Highway 73 to see that body from the road

anywhere?

A. No.

Q. Where would you have to be to see it?

A. You would have to be on the opposite side of the ravine

or up in a high upper area to be able to look down toward it.

You wouldn't be able to see it from the highway, no.

Q. Is it a fairly remote location?

A. Yes.

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PAGE 48

MR. MANDEL: Nothing further, Your Honor.

THE COURT: Anything further?

MR. RENSCH: Nothing further.

THE COURT: Thank you, you may step down. Well, is

your next witness a shorted one or a long one.

MR. MANDEL: I have one that is, be pretty short,

Your Honor.

THE COURT: Call your next witness.

MR. MANDEL: United States would call Jim Glade,

Your Honor.

(Bench Conference)

MR. McMAHON: Your Honor, may we approach?

THE COURT: You may.

MR. McMAHON: We forgot to visit with you about a

sequestration order, but we are agreed. None of our witnesses

have been in here, I don't know about his.

MR. RENSCH: I don't even know what mine look like,

but I don't think they are here. And I meant to move for that

as well.

THE COURT: I meant to ask you and I forgot. It is

granted as to each.

MR. McMAHON: Are you going to announce that if

there are any in here they should leave?

THE COURT: Yes.

(End Bench Conference).

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PAGE 49

THE COURT: I am going to enter a sequestration

order. What that means is that if there are any people in the

audience that are going to be witnesses or might be witnesses

in the case, then you have to step out. You can't stay during

any proceedings. If anybody is in the audience that is going

to be a witness, because if you don't step out and you become

a witness, you might not become a witness, because I might not

let you testify. That's what a sequestration order does.

Alright, proceed.

JAMES GLADE,

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

said as follows:

DIRECT EXAMINATION BY MR. MANDEL:

Q. Sir, could you state your name, please?

A. James Glade.

Q. What is your occupation, Mr. Glade?

A. I am a range land management specialist with the Bureau

of Indian Affairs at Pine Ridge.

Q. What is the spelling on your last name, sir?

A. G-L-A-D-E.

Q. What are your duties there in that capacity, Mr. Glade,

what kind of things do you normally do?

A. Well, I take care of the grazing permits, the land

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PAGE 50

schedules that go with the permits, contracts.

Q. As such are you familiar with the land status of various

lands located on the Pine Ridge Indian Reservation?

A. Yes.

Q. Sir, I am going to show you a photograph, if you could

look at. It will come up on that screen to your right there.

Sir, I am going to ask you if you have seen that before and if

you are familiar with that particular area?

A. Yes.

Q. Sir, I am showing you what's been marked as Exhibit 8

already and admitted into evidence. Now can you tell us first

of all what the location of that particular piece of land is

generally speaking?

A. It is on the reservation on the highway between Martin

and Kadoka.

Q. Is that highway state Highway 73?

A. Yes.

Q. How far is that from the junction of Highway 44 and

Highway 73, if you follow the road?

A. About 3.3 miles.

Q. Sir, would that be to the north of Highway 44?

A. Yes.

Q. You see in about the center of that photograph, sir,

there is a white rectangular area?

A. Yes.

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PAGE 51

Q. Have you been out to this particular scene to view this area?

A. Yes.

Q. As part of your duties did you check on the land status

of this particular location, sir?

A. Yes.

Q. Can you tell us what the status of the land is there?

First of all, is that land located within the confines of the

Pine Ridge Indian Reservation?

A. Yes.

Q. And is that land that is held in trust?

A. Yes.

Q. When we say land that is held in trust, sir, what does

that mean?

A. That means that it is held in trust by the United States

for an individual or a tribe.

Q. For an individual Indian person or a tribe?

A. Yes.

Q. Is that land ranched by a particular individual that you

are familiar with?

A. Yes.

Q. Who would that individual be, sir?

A. Roger Amiotte.

MR. MANDEL: No further questions, Your Honor.

THE COURT: Cross.

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PAGE 52

MR. RENSCH: No questions, Your Honor.

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

Mr. Glade. Now we will go in to recess unless you have

another short witness.

MR. MANDEL: Not that short, Your Honor.

THE COURT: Now I want to give the jury some oral

instructions. This is the end of the first day of trial, and

you are going to go home and your neighbor or your significant

other, or your spouse, your children, parents, your friends,

whomever you have contact with is going to know you came here

to jury duty. Naturally the first question they are going to

ask you is well did you get picked? The answer is yes. But

then the next natural thing they are going to say, well, what

is it about, they are going to want to talk to you about it.

Well, you can't talk to them about it. The problem is that

you start talking about it at all and you are on kind of a

slippery slope. You know, they haven't heard any of the

evidence, they might have read something in the paper, they

might have heard something on the news. But remember we don't

decide these cases based on that, we decide the cases based

upon what you hear from the witness stand, the Exhibits that

are received into evidence, and also the instructions on the

law that I give you, and all of the rest of it is not

material. That's part of your oath as judges of the facts.

So you can't talk to anybody at all about the case. You can't

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PAGE 53

talk to each other about it either, because the only time you

can talk to each other about the case is when all the evidence

is in, the lawyers have argued at the end of the case. That's

not evidence, only to help you in looking at the evidence.

And you have heard my instructions on the law, which are much

more detailed than I have given you already, it's only then

you can deliberate on the case. Don't dig out an old law book

or anything, do any independent research, do any factual

reading and going back and looking at the newspaper or

anything like that. Likewise don't make up your mind about

the case. Wait until you have heard all of the evidence and

you have deliberated, that's when you should make up your

mind, not until. So thank you very much for your service, we

will start again at nine o'clock tomorrow morning. Thank you,

please stand for the jury.

( Jury Leaves at 5:00 ).

THE COURT: Counsel to stay. Please be seated. I

am not shopping for bringing anything up, but my only point is

if there is something, anything that is brought up, I would

like to have it brought up now rather than tomorrow morning,

because, as you know, Judges like to be able to think about

things. I am not aware of anything, I am just telling you

that. That doesn't mean if something comes up you can't bring

it in in the morning, it's just that I have a strong

preference for getting it now. If there is anything, I would

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PAGE 54

like to hear about it.

MR. McMAHON: I am not aware of anything.

MR. RENSCH: I am not either.

THE COURT: That's great, see you in the morning.

We are in recess.

(9:00 a.m., 2-4-04.)

THE COURT: Bring in the jury, please. Good

morning. Call your next witness.

MR. MANDEL: United States would call Don Dealing,

Your Honor.

DON DEALING,

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

said as follows:

DIRECT EXAMINATION BY MR. MANDEL:

Q. Sir, could you state your name, please?

A. Donald A. Dealing.

Q. What is your current occupation?

A. I am retired.

Q. Where are you retired from?

A. The FBI.

Q. What years of service did you put in with the FBI?

A. From October of 1970 through April of 1996.

Q. Was all that time spent as a Special Agent for the FBI?

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PAGE 55

A. Yes, it was.

Q. As part of your duties did you at some point become

assigned to work out of Rapid City on the Pine Ridge Indian

Reservation?

A. Yes, I did.

Q. When did you first begin your assignment there, sir?

A. In July of 1975.

Q. While you were there at Pine Ridge did you become

involved in the investigation of a murder that, where the body

was found on February 24, 1976?

A. Yes, I did.

Q. Was that an individual ultimately determined to be Anna

Mae Pictou-Aquash?

A. Yes.

Q. Sir, can you tell us what your first involvement in that

matter was?

A. Well, I actually was the first agent that was present at

the scene of the crime, or the scene where the body was found.

Q. When you were notified where were you, sir?

A. At the police station in Pine Ridge, the BIA police

station.

Q. About how far is it from there to the scene?

A. I really, mileages are not my strong suit. It takes a

while to get there, I don't recall how long it was.

Q. When you arrived at the scene what did you observe, sir?

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PAGE 56

A. There were people there already, and we went to where

the people were gathered, and there was a body laying at the

base of a cliff, if you will.

Q. Did you observe the condition of the body?

A. Yes, I did.

Q. Can you describe to us what the condition was?

A. The skin was black, badly deteriorated. The body was

clothed, but the body itself was in I would say an advanced

stage of deterioration.

Q. In terms of the ability to identify that body, how would

you describe her?

A. I would have to say unidentifiable.

Q. What decision was made then in terms of dealing with the

crime scene and the body, sir?

A. Well, the clothes were gone through, the pockets and

that sort of a thing, to try to find some identification.

There was some jewelry on the body, and we checked to see if

we could remove the jewelry to see if there was a name

inscribed on the back or something like that, and the skin

came off with it, so we left that alone. Took photographs,

and inspected the crime, or inspected the scene.

Q. Was that piece of jewelry a bracelet on one of the

hands?

A. Yes, it was.

Q. Did you then seek to have an autopsy performed in this

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PAGE 57

case?

A. Yes, we did.

Q. Can you tell us what occurred in that regard, sir?

A. There was an examiner from Nebraska that was the person

who was used for that type of activity, and we notified him.

The body was transported to the hospital at Pine Ridge, and

Dr. Brown is his name, he came up and performed the autopsy.

Q. Were you present at the autopsy, sir?

A. No, I was not.

Q. Were you initially assigned this matter as the case

agent?

A. Yes, I was.

Q. What does that mean in FBI terminology?

A. As a case agent, you direct the investigation.

Information comes to the case agent, and you analyze it,

decide what to do next. If you need help, you ask for help,

and that sort of a thing.

Q. Were steps taken to identify the individual whose body

was found?

A. Yes.

Q. Can you tell me what steps were taken, sir?

A. Oh, we did things including contacting other agencies to

see if there was any missing person report filed. We did take

that piece of jewelry and went to stores that handled jewelry

to see if they would recognize it, for instance, and be able

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PAGE 58

to say who, remember who had purchased it. Circulated a

description that we could get from the body, and just tried to

find out who the missing person was.

Q. Were other steps taken to identify the body through

fingerprints?

A. Yes, indeed. During the autopsy we had the coroner

remove the hands so that they could be sent into the FBI

laboratory where they are able to take fingerprint impressions

from dead skin and deteriorated skin.

Q. Did an FBI agent ultimately take custody of those hands

and send them in?

A. Yes.

Q. Who would that have been, sir?

A. That was John Munis.

Q. Did you retain this case, or was the case reassigned at

some point?

A. The case was reassigned fairly quickly.

Q. Who received the assignment then?

A. I can only give you my best recollection, I am not sure

of that. I think it was Bill Wood.

Q. After that did that pretty much end your involvement

with it?

A. Yes.

MR. MANDEL: I have no further questions, Your

Honor.

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PAGE 59

THE COURT: Cross exam.

CROSS EXAMINATION BY MR. RENSCH:

Q. Morning, sir.

A. Good morning.

Q. In 1975 were you a Special Agent for the FBI?

A. Yes.

Q. What did your duties include?

A. As of when I arrived in Rapid City?

Q. Yes, in 1975?

A. General case work. Most of our case work at that time

was down at the Pine Ridge Reservation. I was assigned cases

just routinely for whatever felony types of things, complaints

came in.

Q. Were you in any way involved in the cultivation of

informants?

A. Yes.

Q. How so?

A. As a Special Agent that's one of your duties is to

cultivate informants, try to find places, sources of

information.

Q. Was there any particular program that you were following

in 1975 concerning the cultivation of informants?

A. My answer is no, other than the FBI program.

Q. What is the name of the FBI program?

A. Well, it is just part of a job description.

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PAGE 60

Q. Have you ever heard of COINTELPRO?

A. Yes.

Q. Is that what it is?

A. I frankly don't, I have heard about COINTELPRO through

media and that sort of a thing, but I frankly have never been

involved in whatever that was. So I don't know what that is,

I am sorry.

Q. In 1975 then you had no special training in anything to

do with COINTELPRO, is that your testimony, sir?

A. That's correct.

Q. Were you aware of any other Special Agent or field

officer in this district or in this area, the area of Western

South Dakota, who was involved in that program?

A. No, sir.

Q. Were you aware of the individual named Anna Mae

Pictou-Aquash before her body was discovered?

A. I believe that I knew that there was a fugitive by that

name. It is hard to say when I first heard about that name.

So I would say probably at that date I was aware that such an

individual existed.

Q. Prior to that time how many other cases had you been

involved in where someone's hands were cut off to identify

them?

A. None that I recall.

Q. Since that time how many cases have you been involved

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PAGES 61 to 75

PAGE 61

with where someone's hands were cut off for identification?

A. None that I recall.

Q. When you send in fingerprints with the FBI back in 1975,

a person has to look at the fingerprints and compare them with

other fingerprints to see if they are the same, isn't that

correct?

A. Would you mind restating that question?

Q. I would be happy to. When you sent in fingerprints back

in 1975, with the technology that was available in 1975, you

had to know of a set of fingerprints that they could be

compared to to see if they were a person's fingerprints, did

you not?

MR. MANDEL: I object to this as beyond the scope

and not within this witness's expertise.

THE COURT: Sustained.

BY MR. RENSCH:

Q. When these hands were sent in to determine the

identification, do you know if any information was forwarded

along that they might be Ms. Anna Mae Pictou-Aquash's hands?

A. Well, I did not prepare a communication, but in my own

mind I am certain there was no information like that sent in.

Q. Incidentally, were you involved in taking a metal

detector out to the scene to try to see if there were any

bullets or anything like that?

A. No, sir.

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PAGE 62

MR. RENSCH: Thank you, nothing further.

THE COURT: Redirect.

MR. MANDEL: No, Your Honor.

THE COURT: Thank you, Mr. Dealing, you may step

down. Call your next witness.

MR. MANDEL: United States would call John Munis,

Your Honor.

JOHN MUNIS,

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

said as follows:

DIRECT EXAMINATION BY MR. MANDEL:

Q. Sir, could you state your name, please?

A. John Munis.

THE COURT: How do you spell it?

A. M-U-N-I-S.

THE COURT: Thank you.

BY MR. MANDEL:

Q. What's your current occupation?

A. I am retired.

Q. What are you retired from, sir?

A. From the Federal Bureau of Investigation.

Q. Were you a Special Agent with the bureau?

A. Yes, I was.

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PAGE 63

Q. What years did you serve in that capacity, sir?

A. From 1968 to 1996.

Q. As part of your duties were you at any time assigned to

work out of the Rapid City resident agency?

A. Yes, from 1975 until 1978.

Q. As part of your duties during that time period, sir, did

you become involved in the investigation of the death of an

individual later determined to be Anna Mae Pictou-Aquash?

A. I did.

Q. Can you tell us, sir, how you first became involved in

that?

A. February 25 of 1976 I was on the reservation. I was at

the Bureau of Indian Affairs law enforcement office and was

notified that an autopsy was being conducted at the Pine Ridge

hospital. I conferred with the resident agency in Rapid City,

South Dakota of the FBI, and was instructed to go over to the

autopsy and retrieve any items of evidence that may be

available.

Q. Did you do so then?

A. I did. I went to the autopsy momentarily. I met there

with a Dr. Brown who was doing the pathology, and also with

Nate Merrick, a criminal investigator for the Bureau of Indian

Affairs.

Q. Can you tell us what took place then at that autopsy?

A. I was only in the autopsy a very short time. After

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PAGE 64

seeing the condition of the deceased, I left the autopsy, went

back and made a call to Rapid City and also to the FBI

laboratory in Washington, D.C. conferring with these people

concerning the condition of the body, and what the best method

would be to obtain fingerprints from the deceased.

Q. As you observed it, sir, what was the condition of the

body?

A. It was in a very decomposed state.

Q. Particularly what did you observe regarding the hands,

sir?

A. The hands were in a shriveled manner so that the fingers

were more or less closed.

Q. After conferring with the lab, did they give you an

indication of what course of action you needed to take to

obtain fingerprints?

A. They did. They said to request from the pathologist

that the hands be removed and submitted to the lab so that

they could do an analysis and attempt to get fingerprints.

Q. Did the pathologist then remove the hands?

A. He did.

Q. Did you ultimately end up with custody of those hands?

A. I did. I took, custody of the hands went from the

pathologist to the criminal investigator, Mr. Merrick, and

from Mr. Merrick to me, and I took them back to Rapid City the

following day and they were submitted to the FBI laboratory.

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PAGE 65

Q. What fashion were they submitted, how were they handled,

were they treated in any particular way?

A. Yes, I was instructed to put each hand in an individual

container and add a ten percent formaldehyde solution.

Q. How did you obtain that solution, if you recall?

A. Pardon?

Q. How did you obtain the solution?

A. I don't have specific recollection. I believe I got it

from one of the hospitals in Rapid City, but I don't recall

specifically where I got it.

Q. In any case, then you packed the hands in that and

transmitted them to the laboratory?

A. That is correct.

Q. Sir, did you have any other involvement in the

investigation of this case?

A. No, I did not.

MR. MANDEL: Thank you very much.

THE COURT: Cross examine.

CROSS EXAMINATION BY MR. RENSCH:

Q. Who was responsible for the clothing that was on

Ms. Pictou-Aquash?

A. Who was responsible for the killing?

Q. The clothing?

A. Oh, for the clothing. The clothing was also removed,

and I received the clothing and hair samples at the same time

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

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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.

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Sioux Falls, South Dakota 57104 (605) 330-4877

PAGE 77

Q. Did you agree with that?

A. No, I did not.

Q. What was your conclusion as to the cause of death?

A. It was my conclusion that the cause of death was a

gunshot wound to the head.

Q. Did you also in reviewing Dr. Brown's report notice what

he said about the kidneys from the body?

A. Yes, he had given a weight to describe them. When I

examined the body, the kidneys were still in place, had not

been removed from the body.

Q. To weigh the kidneys you have to remove them?

A. Yes.

Q. So they had not been weighed?

A. They had not been weighed.

Q. You talked about the condition of the body. You are

aware, of course, that the hands had been severed at the first

autopsy?

A. Yes, they were actually returned to me. I examined

them, and then they were basically rejoined with the body.

Q. Is removing the hands in a situation like this, was it a

recognized protocol back at that point in time?

A. It was. I think it was kind of the minority approach to

things, but it was done and I had seen it mentioned as a

technique in the teaching I had had at that time. It wasn't a

practiced I used, but it was recommended by some authorities

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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.

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Sioux Falls, South Dakota 57104 (605) 330-4877

PAGE 79

A. Good morning.

Q. What is livor mortise.

A. Livor mortise is the settling of blood that takes place

after circulation ceases and gravity will pull the blood to

one of the body surfaces, and it will settle and deposit

there.

Q. You have looked at the bullet that you took out of

Ms. Pictou-Aquash's skull, did you not, sir?

A. I did look at it, yes.

Q. It had copper on it, didn't it?

A. It had a copper coloring, they call a flash. Wasn't

really a jacket around, but had some copper coloration to it.

Q. In the course of the autopsy you also examined the

vagina of Ms. Pictou-Aquash to take a look at it, did you not,

sir?

A. I did look at the genitalia, yes.

Q. You noted the genitalia appeared normal?

A. They did to me, yes.

Q. You didn't find any other bullet holes or bullet wounds

on this body, did you, sir?

A. No, that was the only one.

MR. RENSCH: Nothing further, thank you.

THE COURT: Redirect.

MR. McMAHON: No further questions.

THE COURT: Thank you. Doctor, you may step down.

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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.