US vs LEONARD PELTIER TRIAL TRANSCRIPT EXCERPTS Case Number CR77-3003

VOLUME 13 SIDE  BAR
VOL 13 Apr 1, 1975
before the jury was brought in
 

MR. TAIKEFF: The other matter, Your Honor, is this:  Over our objection there has been brought into this trial on a number {2629} of occasions testimony, and indeed sometimes photographs, involving dynamite or other explosives. I'm not going to re-argue that matter at this time. I merely wish to indicate that after considering certain facts and factors which have come to our attention, we believe that there is a possibility that some or all of these explosive devices were supplied, either by a federal agent or by a federal informant.
And we would ask that at sometime before this trial is concluded the United States Attorney's office make appropriate inquiry and certify to the Court that none of the explosive devices which we have heard about or seen any photographs of in this case were supplied through or by federal agents or their informants.
The reason that we ask that, Your Honor, is not out of idle curiosity, but if the defendant has to suffer the prejudice of such evidence coming before the jury we believe that the defense at the very least should have an opportunity to prove to the jury if that is the case that those explosives were there with the assistance, if not with the encouragement, of federal agents or their civilian employees.

MR. HULTMAN:  Your Honor, again we get a shotgun request in the middle of the trial and my only response to this is that there is a proper procedure and a proper showing that must be made. And it isn't just a bald statement by counsel in the middle of the courtroom have an infinitesimal possibility {2630} that something somehow may have happened. I would only indicate to the Court that my response is that the Government will stand on the position that we object to any such, only such time as a proper showing with proper evidence has been made by the defense, and then the Government will respond in whatever proper the Court at that time will indicate.
But I'm not about again to go out and go on a fishing expedition for the next month and a half throughout the United States and then being accused that I didn't check something out in Tubalas, wherever that is.

MR. TAIKEFF:  Your Honor, Mr. Hultman has twice in the last ten minutes suggested that an accusation of the kind of which has not been heard in this trial is going to be made against him.
The one time that Mr. Hultman did not in fact produce all of the information that was available was when he himself was not accurately informed by the Canadian authorities concerning the existence of a wiretap on Mr. Peltier when he was incarcerated in Canada. And never did we take the position that he had any complicity in that misstatement of fact. Indeed our position was clear. He was misinformed by the Canadian authorities and it was only when we produced certain documentation that the Canadian authorities then made a complete disclosure to him.
We have not to this date, and we do not anticipate, {2631} making any accusations against Mr. Hultman that he made any bad faith searches or otherwise conducted himself in an improper way.
And I wish he would not continue to suggest that such was possible because we don't think it's possible. I don't know why he thinks it might be possible. Now, the point is that Mr. Hultman need not make a search for a month or more. If he wants to go on a fishing expedition I would be glad to join him. The weather is turning quite nice. However, I would ask that he pick up the telephone and call the Department of Justice and say, or the FBI or however it's done, I've never had the privilege of being privy to the inner chamber, but however it's done he can find out whether or not there are any Government agents or informants who played an instrumental role in developing or making available the explosives about which the defendant has heard a great deal along with the jury in the course of this case.
It does not require extensive effort on his part. I think it would appropriate for him to ask, and if he's told that there is no such thing, all he has to do is repeat that to Your Honor and the matter is closed in this proceeding.

THE COURT:  I would ask counsel, do you have any evidence that any explosive devices were supplied by federal agents or their civilian employees?
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MR. TAIKEFF:  We have some indication that such is the case, Your Honor.
I would tell Your Honor that I personally have conducted an investigation and I have enough information that I think is reliable. To use a phrase that the Government uses quite often, I have one or two reliable informants of my own. And I am satisfied that the information I have received warrants my making the application. I am not in the habit of making a frivolous application that is not based on some rational reason. I would call to Your Honor's attention the fact that in Oregon a number of people were charged in federal court, I believe in connection with the posse d on of ten cases of dynamite, and it was promptly destroyed by the FBI, or the federal authorities. And I trust that I'm accurate in saying that it was the FBI. And as a result a United States District Court judge dismissed that case because of the improper behavior.
That is one of the factors that I'm taking into consideration in making the application because I believe the dynamite can be traced. And I believe what my confidential informants have told me is probably true, that that dynamite could have been trace and it would have been traced back to a Government informant.
Now, it is not unheard of for Government informants to act as provocateurs, particularly in small political {2633} organizations that are not looked upon with great favor. Because there's nothing better than in one way instigating people to do things which causes them to cross the line between legality and illegality and then hustle them off to jail so they can no longer be a thorn in the side of those don't appreciate their existence. I think the episode with John Trudell, the national director of the American Indian Movement, who is now serving sixty days because he said something to the marshal which the marshal didn't like hearing is a small example of what I'm talking about.
Now, I believe, Your Honor, that there is a sufficient basis to ask the Government to make an inquiry --

THE COURT:  I might interrupt you at this point and say that I take exception to the suggestion that Judge Davies would have --

MR. TAIKEFF:  Not Judge Davies. I was talking about the action of the marshal, Your Honor.

THE COURT:  I know, but Judge Davies would not have acted unless there was evidence to convince him that it was a proper act to take.

MR. TAIKEFF:  Well, this morning they barred a very important person from the American Indian Movement on the ground that they didn't like the way he closed the door when he left the courtroom. Isn't it amazing that only American Indian Movement people seem to be doing things which the {2634} marshal finds offensive.

THE COURT:  I personally witnessed a very hard slamming of the door by someone when they left the courtroom. I don't care whether they are members of the American Indian Movement or whether they are members of any other society or movement.
It is not allowed in this courtroom, and the marshals are instructed not to permit it to go on. The purpose of this courtroom is try the issues stated in the indictment without distraction from the audience, without demonstrations. And demonstrations and distractions will not be allowed.

MR. TAIKEFF:  Well, Your Honor, Your Honor was sitting on the bench and I was in this courtroom when Mr. Trudell was having his exchange with the marshal. And neither one of us, I'm sure, was aware of what was going on. So it couldn't have been very disruptive.
In any event the point is that my professional experience over the last nine years shows that the nature and the quality and the extent of the things done by people who are in the employee of the United States Government as informants is outrageous, particularly in connection with the political cases I'm speaking from actual revelations, not things which I read, not things which I'm speculating about, but things which I know because they were revealed in open court.
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These things do happen, Your Honor, whether they happen in and around Fargo, whether they happen within Your Honor's professional experience is not the entire question. I represent to Your Honor that they happen, they happen regularly. They happen in drug cases, they happen in political cases.

THE COURT:  This is not a political case.

MR. TAIKEFF:  This is not a political case?

THE COURT:  No.

MR. TAIKEFF:  We're dealing with a person, Your Honor, who is politically active in a political organization.

THE COURT:  The only issue before the Court in this case is the issue as set out in the indictment.

MR. TAIKEFF:  Well, maybe if Your Honor allows the Government or requires the Government to make their inquiry and in fact we get an answer to that inquiry, Your Honor might find that this is indeed a political case.

MR. CROOKS:  Your Honor, I would like to rise to one point which counsel went into, and this is the Oregon matter, the destruction of dynamite in Oregon.
Counsel misstates the record by not stating it completely. The dynamite was destroyed in Oregon because it was unstable. It presented a danger to the community and the officers. The indictment was dismissed by the district judge and that issue is now up on appeal before the 9th Circuit. And counsel is {2636} well aware of the circumstances surrounding that case, and the reason for the problem that arose. And I will not comment on the court's ruling of the district court ruling, but that is a matter which is up on the appeal.
The United States has appealed, not only the suppression of the evidence, but also the dismissal. And that decision has not yet been handed down. And I think it's unfortunate that counsel tends to bring a matter like this up which is under litigation because counsel knows full well that that dynamite was not destroyed for any purpose other than what was stated by the United States that the dynamite was unstable and could have well blown up and destroyed the evidence room or wherever else it was stored. And that is a matter of litigation which has been well established and is now up on appeal. And I think it's unfortunate that counsel even suggested something of that kind.

{SEE 76-1906 US vs LOUDHAWK, BANKS, ANNA MAE AQUASH, REDNER, PELTIER, KAMOOKS BANKS AND EASK}