PELTIER TRIAL; GARY ADAMS

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

GOV WITNESS FBI SA GARY ADAMS
{BENCH} ADMISSABILITY OF PHOTOS A
RESUME TESTIMONY B
[ALSO SEE: RADIO TRANSMISSIONS VOL 8]

VOLUME 2

THURSDAY MORNING SESSION
March 17, 1977
W h e r e u p o n, the following proceedings were had and entered of record on Thursday morning, March 17, 1977, at 9:00 o'clock, a.m., the Defendant being present in person, with the following further appearance for the Defendant of Mr. Bruce Ellison, Rapid City, South Dakota:
THE COURT: Are counsel ready to have the jury brought in?
MR. HULTMAN: The Government is ready, your Honor.
THE COURT: Are counsel ready to have the jury brought in?
MR. LOWE: Yes, sir.
THE COURT: The jury may be brought in.
(Whereupon, at 9:02 o'clock, a.m., the jury entered the courtroom; and the following further proceedings were had in the presence and hearing of the jury:)
THE COURT: The United States may proceed.
MR. SIKMA: Your Honor, the Government calls J. Gary Adams.
J. GARY ADAMS,
being first duly sworn, testified as follows:
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DIRECT EXAMINATION
By MR. SIKMA:
Q Mr. Adams, what was your occupation on the 25th -- or the month of June, 1975?
A I was a Special Agent with the Federal Bureau of Investigation.
Q And is that still your occupation?
A Yes, it is.
Q How long have you been a Special Agent of the FBI?
A Approximately seven and a half years.
Q Where were you -- where was your place of assignment in June of 1975?
A I was assigned to the Rapid City, South Dakota, resident agency which covers the Pine Ridge Indian Reservation in South Dakota.
Q And how long have you been assigned to Rapid City as the --
A (Interrupting) I have been assigned just over three years.
Q You indicated that you had an assignment there of the Pine Ridge Indian Reservation. Would you tell the jury where that is located?
A It is in the southwest corner of the State of South Dakota, south and east of Rapid City.
Q And about how far is it from Rapid City?
A Approximately 120 miles.
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Q How does it come about that as a Special Agent of the FBI that you work on an Indian Reservation or assigned to --
A (Interrupting) The FBI investigates 13 major felonies, some 13 major felonies and some misdemeanor violations on the Indian Reservation.
Q And to your knowledge is this an assignment by Statute?
A Yes, it is.
Q If you will look on the map to the far left of the jury there, to your right, do you see the Pine Ridge Indian Reservation on that map?
A Yes, I do.
Q O.k. There is a pointer on the other map, would you take that pointer and point out to the jury where the Pine Ridge Indian Reservation is?
A Yes. May I step down?
THE COURT: Yes. During this trial the Court will permit witnesses to step down when necessary to illustrate evidence, and it may be done without requesting permission.
THE WITNESS: Thank you, your Honor.
MR. SIKMA: May the record reflect that the exhibit is numbered 70 which is the exhibit to the far left, to my far left.
A (Continuing) Referring to Government Exhibit No. 70, this is the Pine Ridge Indian Reservation which is lined out in {58} the southwest corner of the area depicting the State of South Dakota.
Q How large is the Pine Ridge Indian Reservation?
A It is approximately a hundred miles long and sixty miles wide, and a hundred miles this way to the east and west, and sixty miles to the north and south.
Q And you indicated that you were assigned to work cases on the Reservation. Are there other cases or other agents assigned to other various areas in South Dakota?
A Yes. The Rapid City resident agency covers the whole western edge of South Dakota from the North Dakota clear to the Nebraska border.
Q And how far in -- how far to the east did the jurisdiction go?
A Well, we have another office in Pierre so it would have been roughly through this area here (indicating), including the Pine Ridge Indian Reservation.
Q Right at the eastern edge of the Pine Ridge Indian Reservation, is that correct?
A That is correct. We have Washabaugh County which is in this part of the Reservation (indicating), and we do not cover Philip. That is covered out of Pierre, and we go up in this area here (indicating).
Q Now, on the Pine Ridge Indian Reservation, are you familiar with the town of Pine Ridge?
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A Yes, I am.
Q And where is that located?
A It is on the southwestern corner of the Reservation. That is the principal town on the Reservation.
Q And do you know about what its population is?
A I have no idea.
Q About how far is it from the Nebraska-South Dakota border?
A Pine Ridge is north of the Nebraska-South Dakota border approximately two miles.
Q Are you familiar with the town of Oglala, South Dakota?
A Yes, I am.
Q And where is that in relation to Pine Ridge, South Dakota?
A Oglala is north and west of the town of Pine Ridge.
Q Would you point that out on the map, if you can?
A It would be up in this direction here (indicating).
Q Approximately how far is it from Pine Ridge?
A It is approximately 16 miles from Pine Ridge.
Q Now, would you point out -- would you look at Government Exhibit 71? Is there a highway -- that's the map directly in front of you -- is there a road on that map which connects Pine Ridge and Oglala?
A Yes.
Q And what is that?
A U.S. Highway 18 here (indicating) connects Pine Ridge and Oglala.
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Q O.k. Which direction on the map is Pine Ridge?
A Pine Ridge would be in this direction (indicating), it extends out here (indicating).
Q That's to the top of the map?
A The top and to the right of Government's Exhibit 71.
Q And Oglala then would be to the bottom and to the left, is that correct?
A Yes, over here to the southwest (indicating) -- this is in a north -- or to the north and west.
MR. SIKMA: You may resume your seat.
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THE COURT: Mr. Sikma, I wonder for the record if those exhibits should not be received in evidence.
MR. SIKMA: Your Honor, I would offer them in evidence, Government's Exhibit 70 and Government's Exhibit 71.
I believe, Your Honor, that it has been stipulated --
THE COURT: It was stipulated but I believe for the record they should be formally offered.
MR. SIKMA: I agree, Your Honor.
THE COURT: 70 and 71?
MR. SIKMA: Yes, Your Honor.
MR. LOWE: No objection, Your Honor.
THE COURT: Very well. Exhibits 70 and 71 will be received.
Q (By Mr. Sikma) Mr. Adams, are you familiar with a special agent of the FBI, Ronald Williams?
A Yes. I am.
Q And how long did you know Ron Williams?
A I knew Ron Williams approximately two years.
Q And could you tell me what his assignment was.
A Ron Williams was also assigned to the Rapid City office of the FBI.
Q Now while he was assigned there what were his assignments generally?
A When I, when I first knew Ron he worked in Rapid City and the surrounding counties investigating cases in which we had {62} jurisdiction.
Q Okay. That's Pennington County?
A Including Pennington County which contains the town of Rapid City.
Q Was he ever assigned to the Pine Ridge Indian Reservation?
A Yes. During the latter part of 1974, the first part of 1975 Agent Williams was assigned to Pine Ridge.
Q Do you know how long he was a special agent of the FBI?
A Agent Williams had been with the FBI approximately five years to the best of my recollection.
Q Did you ever work with Ron Williams on any case?
A Yes. I did.
Q Was that frequently or infrequently?
A We worked on occasion in cases that he had, we had juris diction, in Pennington County and around Rapid City and also on the Pine Ridge Indian Reservation.
Q Did you know Ron Williams outside of work as well as at work?
A Yes. We were close personal friends too.
Q Now when you would go to the reservation and work on the reservation where did you generally stay?
A We either stayed in the motel in Rushville, Nebraska, or Gordon, Nebraska.
Q And approximately how far were you generally, when you were working on the reservation how far were you from your home in {63} Pine Ridge, or excuse me, in Rapid City? How far was the reservation from Rapid City?
A Approximately one hundred twenty miles from Rapid City.
Q Did Ron Williams have an automobile assigned to him?
A Yes. He did.
Q What kind of an automobile was that?
A It was a 1973 Rambler.
Q That was in June of 1975?
A Yes. It was.
Q And what kind of radio equipment did that vehicle have?
A Agent Williams in that car had a, had two radios.
One was the five channel FBI radio which we communicated from car to car or from our office in Rapid City to, from the car.
The other was a, what we call a State radio. We could talk with the State Highway Patrol dispatcher or we could also talk with the Bureau of Indian Affairs.
Then there was a government channel which the Pine Ridge police department had for government work from our cars or from the law enforcement service in Rapid City.
Q Did you ever talk with Ron Williams on the radio?
A Yes. I did. Many times.
Q Did you recognize his voice on the car radio?
A Yes. I did.
Q Do you know a Special Agent, did you know a Special Agent {64} Jack R. Coler?
A Yes. I did.
Q And how long had you known Jack R. Coler?
A Approximately one month.
Q How did it come about that you met Jack Coler?
A Agent Coler was assigned to the Pine Ridge Reservation on temporary assignment and we worked, he worked on the reservation and was there at times when I was there.
Q How long was his temporary assignment?
A Agent Coler was assigned there for sixty days.
Q Okay. And what was the nature of his assignment?
A Agent Coler was to go along with five other agents present to the Pine Ridge Reservation to work all the new cases that were generated at that time.
We had a heavy case load every time there's a violation of cases open and those of us who were assigned there had a heavy case load and we hadn't finished before so they sent six agents in to help with our work load so we could get caught up.
Q What kind of cases?
A They were primarily all felony violations which occurred near the Pine Ridge Indian Reservation.
Q By a felony do you mean such as robbery --
A Robbery, kidnapping, assault, rapes, murders.
Q What date or what time did Jack Coler arrive in Rapid City to work on the reservation?
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A Agent Coler arrived in Rapid City either on Memorial Day or the day after Memorial Day in 1975 which would have been the latter part of May.
Q Did you have occasion to discuss cases with Jack Coler?
A Yes. I did.
Q Did you work any cases with Jack Coler?
A Not to my recollection.
I know we discussed a few of the cases down there and he asked me about where certain people lived and that but I don't recall ever working cases with him.
Q You were quite familiar with a number of people as a result of your work on the reservation, is that correct?
A That is correct. I had several friends and had met a lot of people on the reservation.
Q What kind of radio equipment did Jack Coler have in his vehicle?
A Jack Coler also had a radio which he was able to communicate car to car with, on our FBI frequency and to our office in Rapid City.
Q Did --
A He could have had another radio. I don't recall if he did or not.
He could have also had another radio but it was a Colorado car and I would not be familiar with what other agency he could communicate with on the FBI radio if in fact he had one.
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Q So Jack Coler then, although he came from another FBI office he came with his car, is that correct?
A That's correct; yes.
Q And what kind of car was that?
A It was a Chevrolet, four door. I believe it was a 1972 model with a light vinyl roof, gold in color.
Q And he could communicate with FBI agents such as yourself and Special Agent Williams, is that correct?
A He could.
Q Do you know where he stayed in June of 1975 --
A Yes.
Q -- when he was working on the reservation?
A Yes. He was staying at the Hacienda Motel in Gordon, Nebraska.
Q Do you know whether Jack Coler and Ronald Williams worked together on cases?
A Yes. They had on occasion worked together down there.
Q Do you recall or are you familiar with any cases that they were assigned to at that time on the 25th or the 24th of June of 1975?
A Not specifically.
I know Or a case that they were working on that was assigned to Agent Dean Hughes.
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Q And what case was that?
A That was an assault and robbery case that occurred, to the best of my recollection, on the weekend before the 26th of June, 1975.
Q And how many persons were charged in that incident?
A There were four individuals charged in this crime.
Q Do you know who they were?
A Yes. I do.
Q And who were they?
A They were Teddy Pourier, Hobart Horse, Herman Thunderhawk and James Theodore Eagle.
Q On the 25th of June, or rather the 26th of June had any of these persons been arrested?
A Yes. Teddy Pourier had been arrested.
Q Now speaking in generally, not specifically necessarily of this case, what were your duties with regard to charges filed against individuals?
A Well, after the violation occurred the case would be discussed with the United States Attorney's office.
At that time if he authorized prosecution Or the individual or individuals, either a Complaint would be filed. If a Complaint was filed at that time an arrest Warrant would be authorized. The case might go to the Federal Grand Jury and an indictment returned; at that time a Warrant issued and the individual would be, attempt to be apprehended.
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Q If a warrant was issued, did you have any duties with regard to that warrant which were part of your assignment?
A Yes, we did. We would affect the warrant and attempt to apprehend the individual.
Q Is that true of every FBI agent?
A Yes. That is part of our assignment as an agent of the Federal Bureau of Investigation.
Q Warrants are out for people, you are assigned to go out and apprehend these individuals, to locate and apprehend them?
A Yes.
Q Are you familiar with the warrant that was outstanding for James Theodore Eagle?
A Yes, I am.
Q Would you recognize it if I showed it to you?
A Yes, I would.
Q I will show you what has been marked for identification as Government Exhibit 5 and ask you to tell me whether or not you recognize that document.
A Yes. Referring to Government Exhibit No. 5, this is a copy of the arrest warrant for James Theodore Eagle issued in the United States District Court in Rapid City, South Dakota.
Q Now is this the James Theodore Eagle which Ronald A. Williams and Jack Coler, the case they were working on on the 25th and 26th of June, 1975?
A Yes, it was.
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MR. SIKMA: Your Honor, I would offer into evidence Government Exhibit 5.
MR. TAIKEFF: No objection, Your Honor.
THE COURT: Exhibit 5 is received.
Q (By Mr. Sikma) On the 25th, what was the last time that you saw Ronald Williams on the 25th of June, 1975?
A It was about between 7:00 and 7:30 P.M. in the evening.
Q And where were you at that time?
A I was enroute from Whiteclay, Nebraska north of Pine Ridge with the officers of the Nebraska Highway Patrol and the Sheridan County sheriff's office. We were going to a law enforcement meeting in Pine Ridge.
Agent Williams was driving south on the highway in his 1973 green Rambler.
Q You recognized him?
A I did. And we waved.
Q What time of the day was that?
A That was sometime between 7:00 and 7:30. The meeting was at 7:30 and we were enroute and he was headed to his motel, I presume.
Q Do you recall what the weather was like on that night?
A Sometime between 7:30 and 9:00 or 9:30 there was a severe thunderstorm. They had high winds and heavy rain.
Q On the following day did you have occasion to be in the area between Pine Ridge and Oglala, South Dakota?
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A Yes, I did.
Q And did you see any evidence of that rain?
A Yes. There was, in the low places and the rest of the road and places like that there was still water standing.
Q Was this true throughout the day?
A Yes. Even on into the evening.
Q On the 26th of June, 1975, what was your assignment? What were you doing?
A I was working some of my cases on the Pine Ridge Indian Reservation.
Q And did you have occasion to go to Pine Ridge that day?
A Yes, I did.
Q About what time were you in Pine Ridge, South Dakota?
A I arrived in Pine Ridge, South Dakota around 11:00 A.M. in the morning.
Q And at that time did you have occasion to see Special Agent Williams?
A Yes, I did.
Q Where was he at that time?
A He was parked outside the Pine Ridge jail in his 1973
Q And with whom, was he with anyone?
A He was seated in the car and Agent Hughs was standing out side talking to him.
Q Do you know what case they were discussing?
{71}
A No. I do not.
Q Did you have knowledge at this time that they were working on the Jimmy Eagle case?
A Yes. I understood they were working on this particular case.
Q Do you know what the individuals were charged with in that particular case?
A I believe agent, or James Eagle was, and Herman Thunderhawk were charged with, I believe they were charged with robbery and Hobart Horse was charged with assault and Teddy Palier was charged with assault.
Q What kind of assault was that?
A That would be assault with a deadly weapon.
Q How long did you remain in Pine Ridge that time?
A I was there about 45 to 50 minutes.
Q What did you do after you were there?
A As I saw Williams and Hughs, I went into the jail, conducted an interview, returned to the Bureau of Indian Affairs office there. Everyone was going to lunch so I got into my car and started to Whiteclay, Nebraska for lunch.
Q Do you know Special Agent Hughs at that time had, did he have someone with him at that time?
A Yes, he did. He was in the process of transporting Teddy Paul Palier to Rapid City. He had been arrested the day before.
Q And what did you do at that time?
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A After I left the Bureau of Indian Affairs office, I got in my car and started to Whiteclay, Nebraska for lunch.
Q That was at about what time?
A About 11:45 or 11:50 A.M.
Q And how far did you go toward Whiteclay?
A About two miles. Well, I just got to the Nebraska-South Dakota line which is approximately two miles south of Pine Ridge.
Q And what happened at that time?
A I had been monitoring some radio communications from Agent Williams and I found that he needed some help so I went back towards Pine Ridge.
Q What was the first radio communication that you heard?
A The first radio communication I recall is he said, "Looks like there's some guys around that house. It looks like they're going to get into that pickup. Looks like they're going to take off"
Q And about how long a time was it between the first communication that you monitored and the second?
A It was just a matter of minutes.
Q Matter of minutes?
A Yes. Two or three minutes.
Q And what was, let's say from the second to the third communication, how long was it?
A It was, from the first to the second communication was again one or two minutes. It was just all in sequence.
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Q Very, very close together?
A Yes, it was.
Q Just a matter of a few minutes from the beginning until you stopped, is that correct?
A Yes.
Q What was it after the communication that "It looks like they're getting in that vehicle," what was the communication that followed that?
A Hell, after he said, "Looks like they're going to get into that pickup, looks like they're going to take off," then he said, "I hope you've got a lot of guys" or something to that effect.
Q What was the next thing that happened?
A Then he said, "Looks like they're going to shoot at us." Then he said, "We've been hit."
Q Did you hear anything on the radio besides voices when they said, "It looks like they're going to shoot at us"?
A Yes. There was sounds of gunfire over the Bureau radio.
Q How long was it from the time that he said, "It looks like they're going to shoot at us" to "we've been hit"?
A It was just one communication after the other.
Q Just a few seconds?
A Seconds; yes.
Q Did you have occasion to contact him at this time?
A At that point I picked up my radio, my microphone and I {74} attempted to call him to find out what his location was.
Q And did you talk with him?
A Yes. He finally told me that he was at some houses behind Jumping Bull Hall.
Q Did he say he was at some houses?
A Yes. He was at some houses in the vicinity of Jumping Bull Q Did you know where Jumping Bull Hall was?
A No. I did not. I did not know the specific location. I knew generally it was between Pine Ridge and Oglala, South Dakota.
Q What did you do then?
A I turned my car around and started to drive toward Oglala, South Dakota.
Q Now you were about how far from Oglala?
A At that point I would have been about 18 miles.
Q And so you headed to the northwest?
A Yes, I did.
Q What highway were you on?
A I went through Pine Ridge and started on U.S. Highway 18.
Q And during this time did you stay on the FBI radio at all times?
A No, I did not. After I talked to Williams and heard the firing, I tried to raise the Pine Ridge Police Department on the other radio.
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Q Were you able to do so?
A No. I was not.
Q What did you do then?
A Well, I tried on two different channels and then I heard the state police in Rapid City call the Pine Ridge Police Department on the government channel one and advised them there was trouble north of Pine Ridge.
Q And did you have to drive through any towns on the way to Oglala?
A Yes. I did drive through Pine Ridge and then proceeded northwest on Highway 18.
Q Did Ron Williams try to direct you to any particular place?
A Yes. I tried to call him back on the radio because I did not know the specific location of the Jumping Bull Hall. Then he finally came back and said, "Get on a high hill and give us some fire cover. We'll be killed." And he said, he did relate, he said, "Come to a house," that was some distance, a house that has an outhouse some distance from it, but he did not give any specific location yet.
Q Did he indicate to you whether or not he was in a valley at that time?
A Not that I recall.
Q He told you to get on the high ground?
A Yes. Get on the high hill and give us some fire cover.
Q Where was that high hill located?
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A At that point I did not know.
Q How far did you drive after that before stopping?
A I drove eight or nine miles northwest of Pine Ridge, then I stopped my car.
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Q O.k., and why, would you explain why you stopped?
A I stopped my car to get a bullet-proof vest and my rifle out of the trunk.
Q And you didn't have a rifle in the car with you?
A I had a shotgun in the front seat with me.
Q But not a rifle?
A No, I did not.
Q What kind of a firearm did you carry?
A I had a 3.57 Magnum revolver, and then I had the shotgun in the front seat with me. The rifle was in the trunk.
Q When you stopped your car, did you hear anything?
A Yes, I did. I heard shooting from the distance.
Q And did you see anyone at that time?
A No, I did not.
Q Did you meet anyone on the way toward the Jumping Bull Hall area?
A Yes. After I got back in my car and started on the road, there was a Pine Ridge police car came with two officers in it.
Q And who were those officers?
A Frank Two Bolts and James Pacer.
Q Now, approximately, did these -- excuse me. Did these two BIA police know where Jumping Bull Hall was?
A Yes, sir, they did. We had a brief conversation. Apparently they had received word via their radio frequency as to what was going on.
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Q And what did you do next?
A I agreed to follow them into the area because they knew where they were headed.
Q And where did you go?
A We then went on down Highway 18, and they turned off of Highway 18 and I followed them into this area.
Q O.k. Would you go back to the map now and point out where it was on Government 71?
A Referring to Government Exhibit 71, we came down Highway 18, turned off the road here (indicating), and drove up into the vicinity of this house right here (indicating).
MR. SIKMA: May the record reflect that the witness identified the last road to the left of the map on Government Exhibit 71, the main road going off of Highway 18.
Q (By Mr. Sikma) Now, what -- it is also marked on the map there, is it not -- what house?
A Yes. This house is referred to as a tan and red house. It is the far left residence on Government Exhibit 71.
Q O.k., and whose house is that?
A That house was occupied -- residence there, by Wallace Little, Jr., and Wanda Sears.
Q Did you have occasion to gain this information later as to whose house that was?
A Yes, I did.
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Q So at that time you didn't know who the people were that lived in that residence?
A No, I did not.
Q And at that time, I take it that you did not know the whereabouts specifically of Jumping Bull Hall?
A No, I still did not know the exact location of Jumping Bull Hall.
Q Tell what happened next.
A Well, we stopped our cars here (indicating). The Pine Ridge Police Department stopped just in front of me. I stopped to their right or to the west, referring to Government Exhibit 71, and I started to get out of my car.
Q And now, how far was that from the Wanda Sears' residence?
A I would estimate I was 50 to 75 feet from the residence,
Q Is that to the east?
A That would be to the east, northeast.
Q And what happened at that time?
A Just as I started to get out of my car a shot rang out.
Q And did that shot strike anything?
A Yes. It appeared to hit the right front tire of the Bureau of Indian Affairs' police car.
Q Now, what happened after that?
A As soon as the shot rang out, I got back in my car and I yelled at them, "They are shooting at us."
Q Where were the shots coming from, could you tell?
{80}
A To the best I could tell, they were coming from the south or the southwest.
Q Please continue.
A And as soon as I got back in my car, right after the first shot, another shot rang out.
Q Where did that shot come from?
A It again appeared to come from this area over in here (indicating). I had the window down, and I could just hear the sound. I didn't see anyone shooting at me.
Q What did you do then -- or excuse me.
First of all, what happened, did that shot hit anything?
A Yes. The second shot appeared to hit the left front tire of my Bureau car.
Q What kind of car was that?
A That was a 1972 Ford.
Q And what happened next?
A We both proceeded to back out across this open area here (indicating).
Q And that's an area between the first and the second road, the roads that are on either side of the sign, 18, is that correct?
A Yes.
Q And you back into that open field?
A Yes. We both proceeded to back in a zigzag fashion across here (indicating).
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Q And how far did the other police officers go, how far did they go?
A The Bureau of Indian Affairs' car backed toward Highway 18, and there is a crest of the hill. This area (indicating), between this triangle formed by the two roads, referring to Government 18 -- and Highway 18 is flat open area, and just to the west, southwest, and more or less parallel to Highway 18 is a crest of a plateau that goes down through here (indicating). The Bureau of Indian Affairs' car got just over the edge of the crest.
Q And how far did you get?
A Again referring to the triangular area, there is an old roadbed right along the top of this crest (indicating). I was having trouble. I was in the zigzag fashion. My car was going down, and I started into this dip (indicating). I happened to see it coming up, and I knew it was deep enough that I would probably upset, so I swerved and tried to avoid this old roadbed here and slid into the roadbed sideways.
Q At that time were you receiving any fire, was anyone shooting at you?
A Yes, we were. As we started to back from the vicinity of the red and tan house, there were individuals in the vicinity of these residences here (indicating), referring to the log house, the white house and the green house -- were firing at us as we backed from the area.
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Q And what happened to you as you were backing away from that area?
A After I slid into the old roadbed there with the front tire flat, I could not go any further.
Q So you were stalled there, is that right?
A Yes, I was stuck in that particular location. It would be -- referring again to the triangular area just off the curve of the road which is on the far northwest side of the triangular area.
Q I take it then there is an old roadbed that runs parallel to Highway 18, is that correct?
A Yes, that is correct. I don't know -- two or three feet deep, that runs parallel to Highway 18.
Q And is that roadbed at the edge of the plateau?
A Yes, more or less. It does set up on top of the plateau in this particular area here (indicating).
Q And the plateau, I take it, also runs parallel to Highway 18?
A The crest of the plateau, yes.
Q Now, did you talk with Special Agent Williams at this time?
A No, I did not. The last communication I had with him was way back up Highway 18 before I stopped my car to get my bullet-proof vest and rifle out of the trunk.
Q Did you talk to him, did you say anything to him at this time?
{83}
A After --
Q (Interrupting) No, initially when you were back on the road.
A No, I did not. He had told me at that time to come to the house with an outhouse, some distance from him, and to get on a hill and give him some fire cover or he would be killed.
Q What, if anything, did you say to him?
A I just -- if anything, I just told him I was -- I don't know if I said anything to him.
Q Did you indicate to him that you were on the way?
A Yes, I did, to the best of my recollection.
Q Did you receive any communication after that, did he say anything?
A No, I did not.
Q What was the last thing that he said that you recall?
A To the best of my recollection it was that he directed me to the house, with the outhouse some distance to it, and to get on the high hill and give him some fire cover or he would be killed.
Q Did you hear any sounds other than voices on the radio?
A Yes, I did. During the conversation there was also, what appeared to me, the sound of shots over the Bureau radio.
Q When you arrived at the residence called Wanda Sears' residence, did you hear anything at that time?
A No, it was all quiet when I stopped at this location here {84} (indicating).
Q Now, while you were driving up, did you have your window down?
A Yes, I did.
Q Did you hear any shots as you were driving up that road?
A No, I did not.
Q You may resume your seat. Would you describe what happened next?
A I crawled out of the side of my car. I took my rifle, and I fired -- started firing toward the individuals that were shooting at me.
Q And they were in the area marked "residences" up there, is that correct?
A Yes. On Government Exhibit 71 it would be in the vicinity of the white house.
Q And approximately how far were they from the white house, in which direction from it?
A They were around the white house and in the trees to the west of the white house.
Q Could you see individuals at that time?
A Yes, I could.
Q And what, if you can say, did they appear to be -- what did they look like?
A They appeared to be Indian males.
Q When you got out of your car, you indicated that you fired {85} two shots in that direction, is that correct?
A Yes, I did.
Q How many shots did you fire?
A I fired, to the best of my recollection, four shots, one clip, and they just continued to shoot at me. I didn't appear to be getting close. I looked down, and this rifle -- I had had a scope on it, and the scope was ajar on the mount, so I took -- it had a release type mount, so I took the scope off and fired two or three more rounds with the iron sights or the open sights.
Q Were they shooting at you up to that time?
A Yes, they were.
Q When you took the sights off, did they continue to fire at you?
A After I fired the two or three rounds, they disappeared into the trees or behind the residence.
Q How long did you stay in that position?
A I was in the vicinity of my car there until -- most of the afternoon, until about 6:00 p.m.
Q Were you receiving any fire during this time?
A Yes. We received fire off and on all afternoon.
Q Did anyone else arrive at the area?
A Yes. There was other Bureau of Indian Affairs' policemen and also members of the South Dakota Highway Patrol and some of the surrounding Sheriffs' offices and city police.
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Q O.k. Who was the first person to your knowledge to arrive after you arrived at the area?
A There would have been the Pine Ridge Police Department representative -- I don't know which one would have been there -- their acting agency Special Officer that was on the scene, then the Acting Bureau of Indian Affairs' Superintendent for the Reservation also came to the scene.
Q O.k. Did anyone at this time go toward the houses at any time during the afternoon, go in toward those places where the shots were being fired?
A Yes, they did.
Q What time, do you remember, was that?
A At approximately 12:30 there was a non-Indian female entered the area.
Q And who was that?
A JoAnn Ladeau.
Q Do you know why she was going in the area?
A Yes. I received radio transmissions that she had talked with Acting Bureau of Indian Affairs' Superintendent, Kendall Cumming; and she wanted to go in in an attempt to negotiate with the individuals who were shooting at us.
Q And did you see her go into that area?
A Yes. After the radio communication, I saw her enter the area of the tan and red house, referring to Government Exhibit No. 71.
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Q Did she stay at that place while you were there?
A She drove in on the road which passes the Jumping Bull Hall, stopped in the vicinity of the tan and red house; and when she got out of the car and started to the house, I got on the loudspeaker and told her they were to her left, and then she walked to the vicinity of the three houses, the log house, the white house and the green house on Government Exhibit No. 71.
Q And could you see her at that time?
A I saw her off and on, yes, while she was in there.
Q And approximately how long did she stay there?
A I estimated that she was in there about an hour.
Q Did you fire toward those houses at any time?
A No, I did not. After I fired my sixth or seventh shot, I did not fire again that afternoon.
Q And this was during the time of a truce?
A Yes. Mr. Cumming told me that she had agreed to enter the area and attempt to negotiate with these people, and he asked for a cease fire; and at that time I was the only individual in that area. There was no one firing towards the individuals at the residences.
Q During this time did you receive any gunfire?
A Yes, I did. As I stated, I received intermittent gunfire at my location during the afternoon.
Q And this was during the time that she was in this area?
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A To the best of my recollection, I also received fire while she was in the vicinity of those houses.
Q How long did she stay in this area?
A To the best of my recollection she stayed about an hour.
Q O.k. Did you see or observe during this period of time where she was, where she went or anything like that?
A At one point she was talking with some individuals in the vicinity of the white house and the trees, to the west of the white house. I also saw her walk back to the northwest and go in a westerly direction down off the crest of the plateau.
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Q Now have you since that time walked to the area where she was?
A Yes. I have.
Q Now tell me, what could you see if you were standing in the area where you saw her walking?
A After you get off the crest of the plateau you can see the entire area including the vicinity of the area marked Coler's car.
Q So from that, now from where you were could you at any time see the area which was, which is marked Coler's car and bodies as SA Williams and SA Coler?
Q Could you see it from where you were, where you were in your car?
A No. I could not.
The crest of that plateau and the plateau which extends back to Highway 18 is approximately twenty to thirty feet higher in elevation than the plateau in which is marked Coler's car and bodies of SA Williams and SA Coler.
Q Is that a relatively abrupt drop down the plateau?
A You can drive off of it but it does taper right off.
Q Are there some roads there that you can drive to the bottom that are indicated?
A Yes. As exhibited on Government's Exhibit 71, there are some roads that pass, they're trails is all they amount to that {90} pass into that area.
Q Approximately how long did JoAnn LaDeau stay in this area?
A She was in there about one hour.
Q So did you see anyone else go into this area that afternoon?
A Yes.
To the best of my recollection after she left the area there was another individual who entered the area.
Q Okay. Who was that? Did you receive an announcement that he was coming into the area?
A Yes. There was a, a radio communication that an elderly gentleman was going to come into the area. He also wanted to try to negotiate.
Q And who was that?
A Wallace Little, Sr.
Q Is he related to the Wallace Little, Jr. that was living in that residence to the west, or to the northwest?
A Wallace Little, Sr. is the father of Wallace Little, Jr. and also June Little who lived in the tan and red house on Government Exhibit 71.
Q You observed him driving into this area, is that correct?
A Yes. I did.
Q And where did you go when you saw him go into the area? Did you --
A He also drove into the house, or to the, on the road that runs alongside Jumping Bull Hall, drove past the tan and red {91} house and stopped in the vicinity of some vehicles which were parked just outside of the log house.
Q And where did he park if you could please point it out with the pointer on the map?
A There are, there were two other vehicles parked in the vicinity of this, this little black object which is north of the log house and to the best of my recollection he stopped right in the vicinity of those two other vehicles.
Q And approximately how long did he stay there?
A He was in there just a few minutes and turned around and left.
Q Okay. And which direction did he go out?
A He came back out, passed the tan and red house and back out this direction and went to the southeast on Highway 18.
Q And that by indicating, he went again by the road called Jumping Bull Hall?
A Yes. Past the road which passes by Jumping Bull Hall and then he continued on.
Q Did you see him get out of his car while he was there?
A I don't recall seeing him get out of his car; no.
Q But you saw his vehicle, you saw it go in and you saw it go out, is that correct?
A Yes. I did.
Q Now did you have any conversation with the, with other people on Highway 18 at the time he drove out?
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A Yes. At that time I tried to get someone south of that area, or southeast of that area to stop this pickup.
Q And did they stop it?
A No. I had received no media of communication that they were able to stop the pickup.
Q Did you see him go on past the roadblock?
A I could not see a roadblock from my location; no.
Q Now what time approximately was that that he left the area?
A I estimate it to be around 1:30 p.m.
Q Approximately how long did you stay before anyone else went into that area?
A I was there for the remainder of the afternoon and it was about 3:00 o'clock in the afternoon when the next individual entered the area.
Q And who was that?
A Edgar Bear Runner.
Q Okay. At 3:00 o'clock in the afternoon you indicate that Edgar Bear Runner went into the area?
A Yes.
Q And he was permitted to go into the area?
A Yes.
Again he had talked with Mr. Cumming and the acting agency special officer, Neil Moore, and he was allowed to enter the area and attempt to negotiate.
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Q So he was going in to talk to the people in the residence, is that correct?
A Yes. This is -- yes.
Q Approximately how long did he stay in the area?
A He was in there the first time about twenty to thirty minutes.
Q And where was he, or could you see him while he was there?
A Yes.
Again he went to the vicinity of the white house on Government Exhibit No. 71.
Q Was he on foot?
A Yes. He walked in.
Q And did he stay, did he go into the house or stay outside the house? What did he do?
A To the best of my recollection he just talked with the individuals outside of the house.
Q And what did he do next?
A He turned around and came back out to our location.
Q At what time did he leave on the first occasion?
A About, he came back to our area about 3:30 p.m.
Q I want to back up.
When JoAnn LaDeau left the area, did anything happen at that time?
A Yes. After she left the area they attempted to talk with her. She'd only stopped briefly and said she couldn't negotiate {94} with her people and refused to talk with the officers and left the area.
Q Now at that time did anything happen concerning you and the people at the houses?
A Yes. After she left, then they started firing again at our location.
Q And what was the nature of the fire: was it a few shots or --
A At times it would be heavy fire and then it would just be a shot now and then.
Q During this time did you return any fire?
A No. I did not.
No one from my location there fired toward the residences during the entire afternoon.
Q And why didn't you fire in that direction?
A Primarily because we didn't know what the status of Agents Williams and Coler was. We didn't know if they were hostages, if they were in the house or what their situation was.
Q After Edgar Bear Runner came out the second time you indicated he had been there about twenty minutes, is that correct?
A Yes.
Q How long later was it before he went in the second time?
A He talked briefly with Mr. Cumming and Mr. Moore and he was asked if he had seen the agents and what their condition was {95} and he said he had and they appeared to be dead.
Q That was the first time or the second time?
A That was the first time.
Q Okay. And did he indicate where they were?
A No. He did not.
Q Approximately what time was it that he gave that indication?
A It would have been 3:30 or 3:45.
Q And did he have occasion to go back into the area?
A Yes. At that point Mr. Cumming volunteered to go in with Mr. Bear Runner to determine the specific condition of Agent Coler and Agent Williams.
Q And what happened next?
A They walked into the area. I saw them walk by the tan and red house off the crest of the plateau.
They had returned a short time thereafter and Mr. Cumming told me that, that Ron and Jack were dead.
Q Did he come up to where you were at that time?
A Yes. I was there when he came back out.
Q Did Edgar Bear Runner ever go back toward the residences?
A Not on the second trip; no.
Q What happened next?
A We were attempting to get organized so we could secure those houses.
Mr. Bear Runner wanted to have Mr. Cumming contact the Bureau of Indian Affairs in Washington and Aberdeen before {96} any assault was made and there was some negotiation around there.
Mr. Cumming and I had a discussion concerning jurisdiction in this operation.
Q Tell me, did anyone else come out of that area?
A Yes. They did.
Q And would you tell us what, approximately what time that was and who you observed.
A Just prior to Mr. Bear Runner's appearance on the scene at 3:00 o'clock I received a radio transmission from the State police that there was a young individual walking on the crest of the plateau with his hands up.
Q Would you point out where that was.
A When I first observed this individual it would have been in the vicinity, in this vicinity right here.
MR. HULTMAN: And that is, Your Honor, may the record reflect that that's approximately one foot directly to the left of the tent city area on the chart, a distance of one foot?
THE COURT: The record may so reflect.
MR. HULTMAN: Thank you, Your Honor.
Q (By Mr. Sikma) And would you direct which direction this individual was walking.
A Yes. This individual walked along the plateau along the edge of the plowed field and to the vicinity of three residences so marked on Government Exhibit No. 71.
{97}
Q And where if anyplace did he go from there?
A He was around there when Mr. Bear Runner was in there and him and Mr. Bear Runner walked out to our location.
Q And did he have any indication, did he talk with anyone or make any statement?
A Yes. We attempted to, to interrogate him as to what the situation was in there and he only related that there were some armed individuals in the trees and Mr. Bear Runner told him not to talk with us.
Q What happened next? First of all, what time was this approximately?
A When Mr. Zimmerman and Mr. Bear Runner left?
Q Yes.
A Sometime around 3:30 or 3:45.
Q Are you sure about that time?
A That's strictly an approximation. I hadn't made no notes at any time that entire afternoon.
Q So this was sometime later in the afternoon, is that correct?
A Yes. Yes. It was.
Q Where did you go from the, did you eventually leave this particular area?
A Yes. The, the houses were eventually secured by law enforcement personnel and after I received word that they were secured I entered the area of the houses.
{98}
Q Okay. And where did you go?
A I first drove to the vicinity of the white house referred to in Government Exhibit No. 71.
Q Did you at that time have occasion to go to the bottom of the hill?
A Yes. After I was in the vicinity of the white house and the green house I walked to the vicinity of what is marked on Government Exhibit 71 as Coler's car.
Q Did you, have you seen any photographs that reflect what you observed at that time?
A Yes. I have.
Q I will show you what are marked for identification as Government Exhibits 6A, 6B, 6C and 6D.
MR. TAIKEFF: May we approach the side bar, Your Honor.
THE COURT: Yes. (Whereupon, the following proceedings were had at the bench:
MR. TAIKEFF: Your Honor, at this time we thought it would be appropriate to state to Your Honor the purpose for which we filed a trial memorandum which listed the various objections we intend to make as the Government offers evidence.
We trust that the understanding with the Government is that we file it both for the Court's guidance and for the prosecution's guidance so that they would understand that our {99} position is that we think that there is certain prejudice involving those exhibits and in the showing of those exhibits in any way in an effort to introduce them into evidence. I don't know that these particular photographs are on the list because I haven't seen them at this particular moment but I'd like to make clear that we believe that the memorandum will reserve any of these objections in the hope that we make sure that Your Honor has ruled on those particular items before any revelation of them is made to the jury.
MR. HULTMAN: Well, Your Honor, we certainly are willing to hear in good faith and counsel I know understands that and we, there in this case has been no showing to the jury at all.
MR. TAIKEFF: I understand.
MR. HULTMAN: But we're going to go forward at this time and we'll hope that you will at least, you know, Elliot will come forward as to, on each of the issues because until that time we're not going to know for certain what your posture is which I don't know so in some compartment in the file, but at the present time I think we're --
MR. LOWE: Your Honor, the normal procedure is to show opposing counsel the exhibit before you show it to a witness and then we will know in advance and can approach the bench before a possible objectionable item is in evidence and I think --
{100}
MR. HULTMAN: Fine. Everybody is familiar with this, Your Honor, and we'll follow it.
MR. SIKMA: I am certain opposing counsel knew precisely what I was dealing with.
MR. TAIKEFF: The exhibits are all marked so we will all know which, we each have a list of them.
MR. HULTMAN: I didn't make any remarks to the following until you mentioned to the Court what the specific function of that memorandum was and we wanted to make sure what it was.
MR. SIKMA: We have also filed a memorandum in this regard, with regard to these exhibits and this is in response to the defendant's motions.
THE COURT: That was filed last night?
MR. SIKMA: Yes, Your Honor.
MR. HULTMAN: Generally speaking I think the --
MR. TAIKEFF: The position of our memorandum, but to make it clear to the Government, our position is that we do not wish to restrain the Government's effort to prove any fact which it thinks it has a legitimate purpose in proving and in order to avoid any prejudice we're prepared to stipulate to any fact which any of the evidence would place before the jury in order to avoid the prejudicial impact that we believe is inherent in certain of the exhibits and those are the exhibits which are listed in our memorandum.
We have in some instances made a legal objection and {101} in the alternative, we make the objection and if Your Honor should find that our legal objection is not sufficient, that there is a prejudicial basis for objecting.
Where we make that claim of prejudice in every instance we are prepared to make an appropriate stipulation so that the Government will not be hampered in proving facts.
All we wanted to do is to avoid undue emotional impact on the jury and we are prepared to make essentially any stipulation necessary to satisfy the Government's needs except their need to raise the emotional level of this case.
MR. LOWE: May I point out, Your Honor, that this is, a fairly important issue is going to be dealt with in other pictures. I don't know if Your Honor has had a chance to see any of these other pictures.
I might offer a suggestion that Your Honor may want to take a midmorning recess so the jury can be excused and we can deal with the memorandum because your ruling in this instance is going to affect substantially the rulings on the later matter also and I think Your Honor would want to see those pictures in order to get a sense of them. I think it's very difficult for you to decide with all of us clustered around.
THE COURT: What is the Government's response?
MR. HULTMAN: Well, Your Honor, our position is that we would not accede that the request of counsel not as to procedure but as to the ultimate issue, I mean there's no sense {102} of putting them in evidence as the jury, I mean that if the ultimate issue and evidentiary items that we have submitted and that are on the exhibit list and the counsel has agreed to in discussion back and forth.
The Government, one, intends to enter them as evidence and, two, we believe there is a legitimate basis for every, D, for example, just starting with these four photos, these are four photos, these are four photos of the exact situation in the case of this as the bodies were found and this is, if there's any piece of evidence that ought to be admissible, it certainly ought to be this.
{103}
These photos then show at the moment here when the bodies are turned back, as you can see, to see all the various wounds and a number of items of evidence that are going to come into testimony here, that's the purpose itself as it is as gory as it is that is the facts and we don't think that the Government ought to be deprived of showing this is the crime of murder.
This goes to the very things that are pictured here and key evidence is involved here and this is the posture we take on all of the items of evidence, Your Honor.
MR. SIKMA: One other thing, Your Honor.
The Government cannot be expected and should not be expected to stipulate its case away.
There are obviously things which have more of an impact and it's a legitimate purpose to show this evidence to the jury rather than being required to stipulate to it.
I believe we cited in our Brief on a certain case in this regard and when the Government stipulates to certain things merely because, like the defense counsel is willing to write out a stipulation to it, this affects the effectiveness of our case which is a legitimate purpose of presentation of a case and advocacy and it's one of the things that are necessary in order to give the jury a true picture of what occurred and not merely a picture in black and white and a reading of some stipulation which does not give them an indication as to what {104} actually happened and that's why it's necessary.
THE COURT: What's the specific issue before the Court at this moment?
MR. LOWE: Whether those pictures should be admitted under Rule 403, prejudice, overweighing prejudice or relevance.
MR. TAIKEFF: It seems, Your Honor, if I may have those photographs for a moment, Mr. Sikma, my understanding of the evidence and this is what the agent came upon when they discovered the dead agents, this is a true depiction of what the scene was as they found it.
Now we have these subsequent photographs. This one I would identify. The first one I refer to is 6A. That's what they came upon when they arrived at the scene.
6D, Your Honor, is a photograph made when the agents were turned over by other agents or other law enforcement people and as Your Honor can see, it's a close-up which does not reveal anything that the first photograph doesn't reveal except gore, to use a single word.
Likewise 6B and 6C are further close-ups of the individual agents.
Now there's no aspect of the pathology of this case which is in dispute. We are prepared to stipulate that any of the findings of any pathologist concerning the number of wounds, the impact of the wounds, the type of wounds, whether they were fatal or nonfatal, whether they were disabling. None of that is {105} in issue as far as we are concerned, Your Honor.
The only issue is, in this case is whether Leonard Peltier participated in these deaths, in the killings.
The fact that the agents are dead is not in dispute. The fact that they were on official duties is not in dispute.
To show somebody these two photographs, 6B and 6C, establishing and substantially showing where the agents were or that they were dead is totally unnecessary to this. It is prejudicial; it is prejudicial because it was horrifying.
Now it may be that it is necessary for them to position the agents relative to the car, et cetera. For that purpose I'd say photograph 6A is perfectly appropriate but the remaining photographs, Your Honor, are there for one purpose only and that is they're for their emotional impact and the answer to that question, I think, is clear and I would ask that the Government state what specific fact Exhibits 6B, 6C, and D would establish that 6A doesn't establish.
MR. HULTMAN: Many things.
MR. LOWE: May I make one clarification.
We only got the memorandum of the Government last night and we haven't had a chance to do a lot of research on it but from what I read and from what I would guess, I suspect that in none of the cases that are cited for the proposition of gory pictures coming in, in none of those cases was the defendant willing to stipulate the ultimate fact of pathology and that's {106} what we're saying, as far as I know, as to what is in the ultimate pathology that, we are not willing to stipulate to high-powered rifles, distance that they were fired.
If the Government would tell us, make an offer of proof we'll stipulate to it I'm quite sure and I think that's the big distinction and then we'll proceed on Rule 403 which at least says that the probative value must outweigh the prejudice and we can stipulate to the probative value. It's difficult to see how these pictures would meet that test.
MR. SIKMA: Your Honor, there are a number of things that can be shown but we choose and in the light of being effective in our presentation of this case to show things that the pathologist will be able to use with regard to these bodies only.
The pathologist who is examining the bodies and who did not conduct the autopsies, examines the photographs during the course of the autopsies. They're, of course, necessary but he must also have things that he can see and compare with what he has observed in the photos of the autopsies as well as the bodies at the time so he can see if there's any substantial difference and he needs this in order to make a valid comparison and I believe that they're legitimate for this purpose.
The chain of evidence, custody of all the evidence as far as it's concerned with regard to this agent who has made this observation can testify simply that he made those obser- {107} vations and that the only thing that took place on these photographs is that the agents were turned over.
Now we don't see the necessity to show these photographs to the jury but we do see the necessity to show them at a later date after our pathological evidence is brought in.
In the last trial it was stated that all things would be stipulated to and also, but in the closing argument some things came up which were precisely the different. Mr. Lowe is the one who brought that up.
I'm not going to agree to go along with it at this time for that reason because I thought we had substantial agreements in that regard.
After our witness was gone and we had agreed to stipulate to those things, the stipulation did not take place.
Then in addition to that an argument came up which was a very good argument on the closing argument because we didn't have an opportunity to precisely put these things into the record and that's what we should do, Your Honor, on this occasion.
MR. HULTMAN: Your Honor, -- just a minute. You guys have had an opportunity.
In addition, Your Honor, there are evidentiary items that are in these photographs at the moment which have to do with the types of wounds, how the wounds are, the relationship of the bodies to the car, the items that you can see in those {108} photos 6B, C and D that will be connected up and for which I will at least make a disclosure right now since counsel wants evidently an indicational disclosure, ammunition pouches, for example, shown specifically in these photos that do not show in other photos.
Now if I know you want to stipulate, but I don't have to accept that stipulation, but it goes and that's my point, Your Honor. Throughout this trial we're going to be faced with constant stipulation and that, that one of the purposes for stipulation, of course, a very legitimate one, and the Government has agreed to this and will try to continue, that we remove issues and matters in order to shorten the trial but the Government has no duty, in fact it has an obligation not to stipulate to those things which have probative value to a jury and we're going to retain that right from the very beginning and I'm going to fight extremely hard to have that opportunity because we are concerned with the crime of murder here.
Now we're not talking about photos by comparison, Your Honor, not those at the immediate place within seconds or two or how they're found but we're talking about autopsies where bodies are cut apart and things of this kind which don't have the same probative value of photographs of this kind do and we are taking it one step removed and it's for these reason, Your Honor, that the Government must insist that in all instances it has an opportunity to take its case forward to the {109} jury for the probative values that are involved and only if the Court would find under the Rules and under the cases that whatever the item is is of such a nature and so shocking in such a way to go beyond the probative value, it is then the responsibility of the Court and rightly so to make that determination, that it's going to resolve to get an unfair result far as the jury consideration is.
But I submit to the Court, no matter how shocking these photos here may be, that the jury has a right to see those exactly as they are. That is how those bodies were found, when turned over those are the conditions that it was in and it has to be, they are items that are involved in this case.
MR. LOWE: Let me just make a factual correction.
Mr. Sikma misstates what took place last summer, I think, in the statement but the defendants last summer were not willing to stipulate to the ultimate pathological facts. As a difference we tried to stipulate to some of the pathology at what stage we made it or broke it down but they're, as to the offer to stipulate the ultimate facts, we are willing to stipulate everything. If they want to have a stipulation that a person was stabbed at a certain place and someone held a certain weapon at a certain level and --
MR. HULTMAN: We're going --
MR. LOWE: Let me finish, Mr. Hultman. They're willing to stipulate as such to who, anything {110} of that and the probative value of the evidence being prejudicial is crutial.
MR. SIKMA: Your Honor, with regard to that, I don't think the jury could understand what we're saying about a pathological stipulation if they can't see the photographs to which they're, we are stipulating about the pathological findings. I don't think they would understand what we are talking about.
THE COURT: Which of those photographs do you wish to support your pathological findings?
MR. SIKMA: All of them.
THE COURT: All of them?
MR. SIKMA: Yes. But in addition, additional photographs, not all of them, some of them in the book show the bodies in relation to the house and which show the automobiles and certain things like blood on the automobile, Coler's automobile and how they were found in relationship to the various houses which are on Government Exhibit 71.
THE COURT: What were you proposing to do right now?
MR. SIKMA: Right now I plan to show this witness -- I would offer 6A. I would, well, I guess I could at this time offer 6D, 6, excuse me, 6B, C and D also because this is what the bodies looked like when they were turned over and that, I think we have already sufficient evidence to show this but I {111} could wait with that until the, until the pathologist or other witnesses who moved the bodies testify.
MR. HULTMAN: There will be no objection to 6A, Your Honor. This is fine.
MR. TAIKEFF: If I may add one comment, I do not believe the Government has in any of its argument presented anything to the Court by way of saying what is contained within these photographs they intend to prove.
There is nothing in these photographs that is in dispute. Mr. Sikma speaks in terms of being effective with the jury, a very general statement which I suspect is a euphemism for getting a guilty verdict by showing them horrible photographs.
I don't know what it is that the Government thinks they will be inhibited from proving if they don't show these photographs other than the fact that it was horrible evidence and I think, Your Honor, the ultimate issue in this case is who was standing there when these agents were shot and who pulled the trigger, not whether they were shot at close range and not whether someone pulled the trigger because we all know that that occurred and it's not in contention and it will not be disputed in this case.
MR. SIKMA: On the contrary, Your Honor, we can't show the things to which we stipulate clearly without the jury being able to see what we are talking about because it is just {112} not understood what, you're talking about something, vaguely about someone in a certain condition. It just isn't the same. It doesn't have the same effect as understanding what it actually is and I can speak in that regard from experience after having worked with these photographs from a standpoint of reconstructing a crime scene.
The more that you're able to see them, in fact the more there is available to see for the jury, the more access they have to them, the more they will be offended by the, by the effectiveness of them as well.
MR. HULTMAN: Your Honor, might I suggest that we take a recess in order to give the Court an opportunity and also the jury a rest. I think we're at that time of the morning. That's the only reason I suggest it.
THE COURT: Well, we are about due for a recess.
But it is the ruling of the Court that in view of the seriousness of the offense that is charged in this case that the relevancy of these four exhibits outweigh any possible prejudice and they will be received.
{113}
(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
Q (By Mr. Sikma) First I will ask you, you have had an opportunity to go to the bottom of the hill to observe the bodies of Special Agents Williams and Coler, is that correct?
A Yes, I did.
Q I want to show you Government Exhibit 6A, B, C and D and ask you whether or not you recognize these photographs and whether or not you can tell me whether or not you've seen the circumstances under which those photographs were taken?
A Yes, I have.
Q Do they fairly depict what you observed at the time you observed Special Agents Williams and Coler?
A Yes, they do.
Q Are they photographs of Special Agents Williams and Coler as you found them at that time?
A Yes, they are.
MR. SIKMA: Your Honor, I would offere into evidence Government Exhibits 6A, 6B, 6C and 6D.
MR. TAIKEFF: May I examine on the voir dire, Your Honor?
THE COURT: You may.
MR. TAIKEFF: I think you just said those photographs depict the agents as you saw them when you arrived at the scene, is that correct?
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THE WITNESS: Yes, sir.
MR. TAIKEFF: Would you look at photograph 6A.
THE WITNESS: Yes, sir.
MR. TAIKEFF: Is that statement true with respect to photograph 6A?
THE WITNESS: Yes, it is.
MR. TAIKEFF: Would you look at photograph 6B.
THE WITNESS: All right.
MR. TAIKEFF: Is that true, is that statement true with respect to photograph 6B? Yes or no?
THE WITNESS: I'd like the question again. I'd like the question again.
MR. TAIKEFF: Is that statement you made that the photographs depict the agents as you saw them when you arrived at the scene true with respect to 6B?
THE WITNESS: Not as I found them; no.
MR. TAIKEFF: Is that statement true with respect to 6C?
THE WITNESS: No.
MR. TAIKEFF: Is it true with respect to 6D?
THE WITNESS: No.
MR. TAIKEFF: No objection with respect to 6A, Your Honor. We object to the others.
MR. SIKMA: Your Honor, I have a couple of further questions.
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Q (By Mr. Sikma) What is the difference with regard to 6B, C and D?
A Photograph 6B, 6C and 6D are a depiction of the condition of the agents after they were turned over. They were found facedown. After they were turned faceup the photograph 6B, 6C, 6B, 6C and 6D depict the agents' conditions after they were turned over.
Q Is that the only difference? Was anything else changed?
A No, it was not. They were rolled over on their backs.
MR. SIKMA: I make the reoffer, Your Honor.
MR. TAIKEFF: May I examine further on the voir dire?
THE COURT: You may.
MR. TAIKEFF: Were you present when the agents were moved?
THE WITNESS: To the best of my recollection, sir, I was.
MR. TAIKEFF: Did you have anything to do with the moving of the agents or the supervising of those who moved the agents?
THE WITNESS: No, I did not.
MR. TAIKEFF: Did you have anything to do with the determination as to which views would be taken, which views would be photographed?
THE WITNESS: No, I did not.
MR. TAIKEFF: Did you have anything to do with how the {116} photography was to be made?
THE WITNESS: Yes, I did.
MR. TAIKEFF: What role did you play in that connection?
THE WITNESS: I wanted, I insured and I had discussions with other agents concerning an adequate number of photographs of the crime scene.
MR. TAIKEFF: And were you the one who determined how many photographs would be made?
THE WITNESS: Not personally; no.
MR. TAIKEFF: Do you know who made that decision?
THE WITNESS: It was a mutual decision, to the best of my recollection, between myself and Agent Dean Hughs.
MR. TAIKEFF: Was Hughs the person who made the photographs?
THE WITNESS: These particular photographs, sir?
MR. TAIKEFF: Yes, sir.
THE WITNESS: I don't recall. I'd have to do some research on that. They were photographs made with my camera and at least two other cameras at the crime scene that afternoon.
MR. TAIKEFF: Can you tell us who made the decision as to whether the close-up photographs would be made? Two of those photographs are close-up photographs, aren't they?
THE WITNESS: Yes. At least two, sir. No. Like I say, we discussed it and we wanted to take as many photographs as we could so we'd get an accurate depiction {117} of the crime scene as we found it on that afternoon.
MR. TAIKEFF: Turning over the agents, did that introduce some inaccuracy?
THE WITNESS: We were concerned with the wounds that they had suffered. That was the primary reason for turning them over.
MR. TAIKEFF: You knew there was going to be an autopsy, didn't you?
THE WITNESS: Yes.
THE COURT: I believe those questions go beyond the voir dire as a basis for objection.
MR. TAIKEFF: Yes, Your Honor.
THE COURT: Mr. Adams, did you actually see the bodies turned over?
THE WITNESS: Yes, I did, Your Honor.
THE COURT: And those 6A, 6B, 6C, are they a fair and accurate portrayal of those bodies as they appeared after they were turned over?
THE WITNESS: Your Honor, it would be 6B, 6C and 6D are a fair and accurate representation of the bodies after they were turned over; yes.
THE COURT: The Exhibits 6A, 6B, 6C and 6D are received in evidence.

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