MR. HULTMAN: May it please the
Court, the plaintiff calls Wilfred
Draper.
{1006}
WILFORD DRAPER,
being first duly sworn, testified as follows:
DIRECT EXAMINATION
By MR. HULTMAN:
Q Would you state to the jury your name, please?
A My name is Wilford Draper.
Q And where do you live, Mr. Draper?
A Minifarms, Arizona.
Q And how long have you lived in Arizona?
A For the last eight years.
Q And with whom do you live in Arizona?
A My family.
Q And would you tell the jury the make-up of your family?
A I've got three sisters, two brothers, and of course,
mom and dad.
THE COURT: Are you able to hear him?
Mr. Draper, the people at that table have to hear you, and I
would ask that you try and speak up loud enough so that your voice may
be heard.
Q (By Mr. Hultman) I want to take you to the year, 1975,
and the early part of June 1975, Mr. Draper, and did you have an
occasion
to go to a convention?
A Yes, I did.
Q And would you tell the jury in your own words where it
was that you went?
{1007}
A Went to Farmington, New Mexico, there, and participated
in the American Indian Movement convention.
Q And did you meet old friends there as well as make new
friends?
A Yes, I did. I met a Leonard Peltier, Dino Butler, and
Bob Robideau, Norman Brown and Mike Anderson, Norman Charles.
Q Did you meet -- those were all men, is that right?
A Yes, sir.
Q And you have referred to Mr. Peltier. Do you see him
in the courtroom here today?
A Yes.
Q And would you tell the jury where he is here in the
courtroom?
A He is over there sitting, the yellow ribbon shirt.
MR. LOWE: We will stipulate identification, your Honor,
no question about that.
THE COURT: Very well.
Q (By Mr. Hultman) Now, did you have occasion to meet some
young women as well as these men that you have mentioned?
A Yes, I did. I met Jean Bordeau and Neelock and Lynn.
Q All right. How long about were you at the convention,
do you recall?
A Three or four days.
Q And where did you go from the convention in Farmington,
New Mexico?
{1008}
A We went to South Dakota.
Q And in what area in South Dakota?
A To the Pine Ridge Indian Reservation.
Q And would you tell the jury who it was that -- if anybody
-- that you left Farmington with and how you traveled?
A I left with the people, the people I met there at
Farmington,
and we traveled in two cars.
Q And was that the group of people that you have just
mentioned
up to this time?
A Yes.
Q All right, and would you tell us what kind of cars were
these and who did they belong to, if you know?
A There was a light green car, I think that belonged to
Leonard Peltier, and there was a dark green pickup with a white camper.
I don 't know the owner of that.
Q All right. Now, who did you ride with in going from
Farmington
to the area of the Pine Ridge area in South Dakota?
A I rode with Dino Butler and Robideau, and Norman Charles
in the camper.
Q All right, and was Leonard with you in one -- was Leonard
there in one of the two automobiles?
A Yes.
Q And were the rest of the names you have not mentioned
in the other automobile traveling?
A Um-hum.
{1009}
Q All right. Once you got to the Pine Ridge Indian
Reservation
area, where specifically did you go?
A Went to the town called Oglala, and from there we went
to a man by the name of Harry Jumping Bull's place out in the country.
Q And did you stay there at Harry Jumping Bull's then for
some time after that?
A Yeah. We stayed there a couple of weeks.
Q All right. Now, I want you to turn around and to the
back of you, to the rear of you is an object which is a map of an area;
and it is Government's Exhibit 71, and ask you whether you recognize
that
particular exhibit?
A Yes, I do.
Q And you have seen that exhibit or one like it a number
of times before, have you not?
A Yes, I did.
Q All right, and you are familiar with that particular
area for the fact that you stayed in that area for a couple of weeks,
is
that correct?
A Yes, I did.
Q All right. Now, I want, Mr. Draper -- do you understand
that the questions that I am asking you, I want you to respond on the
things
that you saw and observed at that time and not anything you may have
learned
since that time, by talking to other people or friends, do you
understand
my questions are {1010} going to be about the event that happened, and
I want you to tell us about the things that you saw and observed at
those
times, and separate them from what maybe you have talked to somebody
about
since that time, do you understand?
A Yes.
Q To the best of your ability, of course, all right.
Now, where did you live in the Jumping Bull area, would you tell
the, jury and explain to the jury where you lived, and where any other
people lived in the Jumping Bull area once you got there, and maybe you
could take the pointer and point out where it is that you lived and
where
any others lived?
A (Examining) I lived right behind Harry Jumping Bull's
place.
Q All right. Would you point that out to the jury?
A (Indicating).
Q All right, and when you say "behind it", are you
referring
to which direction with relationship to Highway 18?
A South, southeast.
Q All right. Would it be toward Highway 18 as different
from away from Highway 18, from the Jumping Bull's?
A Yes.
Q And had you lived at any time -- or did you stay at any
time down in an area which is known as the tent area?
A Yes. I used to stay down there.
Q Is that when you first arrived?
{1011}
Q And when you first arrived, then would you tell the jury
who it is that stayed in the tent area?
A Stayed -- let me see. Dino Butler and Leonard Peltier,
and Bob Robideau, Norman Browm, Norman Charles, Mike Anderson, Joe
Stuntz,
and Lynn Neelock and Jeannie.
Q All right, and about how long did you stay there with
those people in the tent area?
A A couple of days.
Q All right. Then where did you go?
A I moved up to Harry Jumping Bull's place.
Q All right, and did you live in Harry Jumping Bull's,
or did you live in the area of Harry Jumping Bull's home?
A In the area.
Q And what did you live in?
A White tent.
Q And why was the reason that you moved from the tent area?
A Didn't like the atmosphere down at Tent City.
Q What was the atmosphere that you didn't like down in
Tent City?
MR. LOWE: Objection, Your Honor, this is not relevant to
the charges, not talking about June 26th, absolutely irrelevant.
THE COURT: Sustained.
MR. HULTMAN: Your Honor, may we approach the bench?
THE COURT: You may.
{1012}
(Whereupon, the following proceedings were had at the bench:)
MR. HULTMAN: Your Honor, the response to the question,
counsel knows as well as I do, will be the reason --
MR. LOWE: (Interrupting) Can you keep your voice down?
I know you want the jury to know this.
THE COURT: The last remark was unnecessary.
MR. HULTMAN: (Continuing) -- is the fact -- your Honor,
I can't talk any lower than this and be heard, I am doing my best -- is
the fact that the reason he left was because of all the guns, and in
particarr
the relationship of the Defendant himself to the guns; and I think
that's
very relevant to all the events that are going to follow. That's my
reason
for the question, your Honor.
MR. LOWE: I don't think that changes the relevancy one
bit, why he moved from one place to the other. He stayed in the area.
It
is not relevant, certainly not relevant to June 26th.
THE COURT: I will reverse my ruling on the basis of that
information and permit the answer.
MR. LOWE: We will object, your Honor.
THE COURT: Very well. The record shows your objection.
(Whereupon, the following proceedings were had in the courtroom
in the presence and hearing of the jury:)
{1013}
Q (By Mr. Hultman) Now, Mr. Draper, I will again ask the
question that I just asked, why was it that you moved from the tent
area?
A Like I told you, I didn't like the atmosphere down there.
Q And what is it that you referred to specifically when
you refer to the atmosphere down at the tent area?
A Just didn't like it down there, that's all.
Q You have responded to that very question at an earlier
time, have you not, specifically?
A Yes.
Q Under oath, and would you indicate to the jury what the
specific reason was as to why you left and with reference to any
specific
individual?
MR. LOWE: Your Honor, the witness has just answered the
question, answered it fully. He didn't indicate that he didn't
understand
the question. I would object as to its being asked and answered.
THE COURT: He had also indicated that he previously made
a specific response under oath, so the objection is overruled. You may
answer.
The reporter will read the question back.
(Question was read by the reporter.)
A Well, I left because Leonard Peltier was out there, and
he was carrying guns around.
Q (By Mr. Hultman) All right. Now, Mr. Draper, would you
{1014} tell the jury what at this time to which you are testifying, as
well as during that time, what was your feeling concerning guns?
A Well, I like guns. I don't think it is wrong for people
carrying guns and things like that.
THE COURT: You will have to speak up.
THE WITNESS: I said that I like to carry guns and do a
little shooting, go hunting myself.
Q (By Mr. Hultman) During the time of the 26th of June,
and the immediate days following that, did you have any gun or carry
any
gun of any kind?
A No.
Q Now, what did you do in and about the Jumping Bull
property
from the time you got there, approximately two weeks before the 26th of
June, what did you do while you were there?
A Well, I used to help the old man, Harry, help him around
the house, used to help Leonard, to help work and set up tents.
Q Did you do some work in an about the tent area where
the rest of the people live?
A Yes.
Q And would you tell the jury what it is you did?
A Well, I helped chop wood, and I helped set up tents,
and I helped haul water, things like that.
Q All right. Approximately how many tents were there in
the area where the tents were located?
{1015}
A There was three tents and one tepee.
Q And did the people that you have mentioned, other than
yourself, live in that area in those three tents, in the tepee?
A Yes, I used to live down there.
Q Now, during this period of a couple of weeks, what was
it that the others did, in terms of their activity in general, would
you
tell us what generally took place during the two weeks?
A Well, they just about did the same thing I did. We just
lived there for two weeks.
Q Was there any training of any kind that took place during
the two weeks?
A Maybe there was, but we used to do a little shooting
ourseves. I don't know if that's training.
Q Do you recall using the word "training" yourself in
responding
to a question at another time under oath, that you mentioned the fact
that
somebody was doing some training?
A Yes, I did.
Q Would explain just to the jury what it was that you mean
and meant by the word "training"?
A Well, I used to shoot around, just like I would be
sighting
the gun, training yourself to sighting the gun.
Q Did anyone ever show you in the encampment area, the
general Jumping Bull area and the tent area, or in that general {1016}
area, how to use any particular kind of weapon or how to fire any
particualar
kind of weapon?
A Yes.
Q Who was that?
A Leonard Peltier and Dino.
Q Let us go to the 25th of June, and I would like to ask
you whether or not you remember doing anything that day sometime, at
any
time outside of the Jumping Bull area itself, did you go to town any
time
that day?
*A Yeah. It was in the afternoon. I was with Mike Anderson
and Norman Charles, and we went into Oglala, little compound there,
went
to take showers; and we knew some people there, so we went there and
got
cleaned up; and on our way back we got stopped by Jack Coler and Ronald
Williams and some BIA police officers.
Q All right. You mentioned that you got stopped by two
specific men and by name. Did you know at that time what those men's
names
were?
A No.
Q All right. Have you learned since what the names of those
men were?
A Yes.
Q This is why I want to make certain, Mr. Draper, that
in responding -- so that in all faithfulness and in all truthfulness,
as
I know you are, that you tell about what it is you saw {1017} and
observed
at the time and not necessarily something that you have learned since,
so you understand what I am saying?
A Yes.
Q All right. So that you didn't know the names of the two
agents at that particular time, is that right?
A No, I didn't know.
Q But you did know they were two agents, is that right?
A That's right.
Q All right. What, if anything, happened there, would you
tell the jury then in your own words what it was that took place there?
A Well, they stopped us and asked us who we were, and they
asked us if we know Jimmy Eagle. They had a warrant for Jimmy Eagle,
and
we told them "We don't know him," and the FBI Agent, I think it was
Coler,
said, "Well, we are not too sure about you guys." Then he said, "I
don't
know how Eagle looked myself, so we are going to take you into Pine
Ridge;
and when he was going through Norman's towels, stuff, found a gun clip
on him.
Q Now, do you remember what the gun clip looked like, just
in general?
A I think it has a 15 round clip, either 308 or 303.
Q I am going to show you a part of an exhibit which has
been marked as Government's Exhibit 69-A, and I want you to show the
jury
or point out to the jury what it is, if you know, a clip is; could you
just on this weapon point out to the jury what a clip is, or what you
know
a clip to be at that time?
{1018}
A Yes.
Q All right. Would you point it out to the jury, just what
is the clip.
A This is a clip (indicating).
Q All right. Now, I'm going to ask you with reference to
that evening and what you remember, or that day, and the clip you are
referring
to, does this in any way have any resemblance to the one that you have
just touched on Governrnent's Exhibit 69?
A No.
Q All right. What do you remember as far as the clip at
that time, that particular time? What did it look like?
A It was a different shape than that for sure, and --
Q All right. And would you describe what the clip looked
like as you best recall.
A (No response.)
Q Did it have any rounds in the clip?
A No.
Q As you recall it did not have?
A No.
Q Now, did the agents at that particul time ask any
questions
of you?
A They just told us "We're going to take you to Pine
Ridge,"
that was it. So we went with them.
Q Did you recall them asking you what your names were?
A Yes.
1019
Q And what if any response did you make?
A I gave the name David Many Horses and Norman and Charles
gave their name.
Q And did you recall any of the agents who were there doing
anything at the time they asked you those questions?
A No.
Q Do you recall whether or not they wrote the names down
in any way?
A Yes. They wrote it down.
Q All right. If I were to show you now what has been marked
Government's Exhibit 15 and ask you to look at it and to read the items
that are on there. I would ask you first of all whether or not you
recognize,
not from having seen then before, but just any words that are on that
piece
of paper. Do you recognize any words, just the words themselves?
A Yes. There's David Many Horses.
Q Is that the same name you gave on that occasion?
A Yes.
Q I notice on this exhibit there is a date, October 1,
'58. Does that have an significance as far as you yourself, does that
date
mean anything to you just as a day?
A That was the birthday I gave to the agents.
Q All right.
MR. HULTMAN: Your Honor, at this particular time I would
offer into evidence Government's Exhibit 15.
{1020}
MR. LOWE: No objection.
THE COURT: Exhibit 15 is received.
Q (By Mr. Hultman) Do you recall, Mr. Draper, any of the
names that either of the other two men that were boys that were with
you
at the time gave to the agents?
A No.
Q All right. Now, did the agents at that time, was there
anybody else besides the two agents that you recall?
A Yeah. There was some BIA police officers.
Q Did they come up before or after the FBI agents?
A At the same time.
Q All right. And were they in the same car or in a diferent
car?
A Same.
Q All right. As you recall they were in the same car.
All right. Now, did anybody in the process of your discussion
concerning whether you were Jimmy Eagle or not, did anybody give you a
hard time or a hassle in any way at that time?
A No.
Q Would you explain to the jury what was the treatment
that you received by the agents.
A They just asked us to go with them. We went with them.
There was no fight or nothing.
Q All right. And who got in the car?
{1021}
A All of us.
Q All right. Now, do you recall at that time there were
two agents; is that right?
A (No response.)
Q And there were three of you; is that right?
A That's right.
Q Now, did the BIA fellows get in the same car also?
A No. They went back before.
Q All right. So when you responded to me only one car a
second ago you were just referring to the agents having one car; is
that
right?
A They came in two cars really. They sent an officer back
to Pine Ridge and the agents stayed.
Q All right. Now, if I'm not, if you don't understand my
questioning at any time, would you make sure that you ask me because I
want to, want you to tell us what you do reca]l.
All right. What then happened when you got to the station at
Pine Ridge?
A There was a man there, the booking officer. The agent
told us that this man looked like Eagle, and he took us down to this
man
who recognized us. When we got there the man told the agents that this
ain't none of them.
Q So it was your clear understanding at that time that
somebody though that maybe one of you was Eagle or looked like Eagle;
is
that right?
{1022}
A That's right.
Q And that's why you went to the station?
A Yes.
Q And at the station, though, the man that you talked to
there who knew Mr. Eagle said, no, that they are not?
MR. LOWE: Your Honor, this leading is getting outrageous.
I was waiting to see how far he was getting to him to give him a
script.
THE COURT: The objection is sustained.
Q (By Mr. Hultman) What if anything, what if anything did
you do next?
A We just waited around until another officer took us back
to Oglala.
Q All right. And did he drop you off where you wanted to
go?
A Yes.
Q Now, during this whole period of time did any of the
officers in any way give any of you a bad time or anything resembling
that?
A No. Were they carrying out their duties as you would
expect them to?
A Yes.
Q Was there anything unusual or unordinary about it?
A No.
{1023}
Q Now, where was it, if you can tell the jury, that they
left you off, or that this person let you off at your request?
A The turnoff right there on Highway 18. Turnoff that goes
towards Jumping Bull residence.
Q All right. Would that generally be as you are looking
at Govornment Exhibit 71, if you would turn, would that be somewhere up
there on Highway 18 as you can see in this, in this exhibit?
A Yes.
Q All right. And what if anything did the three of you
then do?
A We just walked back in the, to the place.
Q All right. And when you say "you walked back to the
place,"
what are you referring to by the "place"?
A Jumping Bull's place.
Q All right. And where then specifically at Jumping Bull's
place did you go?
A Over to his house, to one of the cabins there.
Q All right. And did you go, did you see anybody there
at the cabin?
A Yes.
Q All right. And who was i[t]?
A We saw Leonard.
Q And what if anything was said or done at that time?
A He just told us, "I hear you guys went to Pine Ridge
with some agents," and that was it.
{1024}
Q What was his reaction at that time?
A Well, he felt like he --
MR. LOWE: Objection, Your Honor, to the form of the
question.
He can only state what he observed. He can't read Mr. Peltier's mind.
MR. HULTMAN: I'm just referring to any observations that
he made and any statement that Mr. Peltier may have made at that time.
THE COURT: Why don't you restate the question. The
objection
is sustained.
Q (By Mr. Hultman) All right. Did Mr. Peltier say anything
specific to the three of you at that time?
**A Just what I told him.
Q All right. And would you tell us the manner in which
he said it to the three of you?
A He said, "I heard you guys went to Pine Ridge with some
agents, and did they do anything to you guys, or anything like that,
did
they harm you?" We told him no, because we went along with them. Told
him
they were looking for Eagle. He said "It's okay."
Q All right. Now would you point out on Government's
Exhibit
71 for the jury, and if you have to get up to do that, with the
pointer,
would you show them the building where this conversation took place.
A (Indicating.)
{1025}
Q And is that a log house?
A Yes.
MR. HULTMAN: Let the record show that the witness poirted
out the residence that has been commonly referred to as the log house.
Q (By Mr. Hultman) Now, where did you stay that night then?
A I stayed up in the tent in the back of Jumping Bull's
Q All right. And did anybody stay there with you?
A No.
Q So is it a fact that you stayed in that tent by yourself;
is that right, Mr. Draper?
A That's right.
Q All right. Now, tell us, in the morning what did you
do in the morning, the next morning, which is the 26th of June?
A I woke up about 8:00 or 8:30, something like that, and
I decided to haul water down to the tent area.
Q And was this something that you did regularly?
A Yes.
Q And about what time of the morning was that?
A 9:00. 9:00, 9:30
Q All right. And at that time of the morning did you see
any people that were in the tent area?
A Yes. I saw little Jimmy, I saw Norman Charles, Dino,
Leonard. I think it was Neelock, too.
{1026}
Q All right. And what did you continue to do that morning
then?
A Just put water in the tank down there, the barrel; and
stood around the talked.
Q All right. Did you have an occasion later that morning
to hear anything that brought some events to your attention?
A No. Until later on, after a while when I was down there,
I heard some gunshots.
Q All right. Where were you at the time that you heard
the gunshots?
A I was in the tent area.
Q All right. And do you recall at that time whether or
not there was anybody specifically with you at that time?
A No, there wasn't.
Q Would you describe the tent area in terms of the foliage
and so forth for the jury.
A I don't understand your question.
Q Well, would you describe what the tent area was like
in terms of trees and bushes and foliage.
A Yeah. There was bushes and trees. It was a pretty wooded
area.
Q Is it very difficult to see in that area?
A Yes.
Q And when you heard the shots would you describe to the
jury what it was that you heard, what did it sound like?
{1027}
A I'm pretty sure it was gunshots, that's for sure, and
it came from the direction of, from the Jumping Bull's house.
Q All right. Would you tell us about how many shots that
you heard?
A First I just heard two shots, then after that, I waited
for a while and then some more shots.
Q And would you point out on the map behind you,
Government's
Exhibit 71, the area in which you heard the shots that you are now
refferring
to.
A (Indicating).
Q All right.
MR. HULTMAN: Let the record show that the witness showed
the general area between the point on Government's Exhibit 71 that is
referred
to as the green house and the area where a "P" is marked, an area
between
those two areas, those two particular points.
Q (By Mr. Hultman) What if anything did you do next?
A Well, I just stood around for a while and walked around
the camp.
Then I heard somebody run up that way, heard some voices. They
said, "Let's go check it out, see what's happening, up there." But I
don't
recall anybody carrying guns when they ran up there, though.
Q All right. When was the first time then that, you see
somebody specifically after hearing the shots and doing the {1028}
things
that you've referred to?
A I saw little Jimmy there.
Q And what was little Jimmy doing, if you recall?
A Must have scared him or something like that, and stood
around and asked me "What are you going to do, what are we going to
do?"
Q Now, who is the next person or persons that you saw?
A Saw Joe Stuntz, Norman Charles. And after a while I saw
--
Q When you saw the two you're now referring to what were
they doing, what did they do?
A They were doing the same thing as I was doing, wondering.
Q All right. And what if anything did they then do?
A I think they ran up there to check it out.
Q All right. Now, what if anything then happened?
A Nothing. I just heard some more shots and some more and
some more.
Q Now, when was the next time that you saw any other
persons
than the ones you've refferred to?
A After a while I saw Dino and Norman Brown around there.
Q And what did they do?
A They just stopped for a while and went back up that way
again.
Q Did you see them with any guns of any kind?
A No.
{1029}
Q All right. Now, what if anything did you do next?
A Well, I just walked through the camp and started walking
down the trail and just kept walking to the woods, down the ravine away
from the gunshots.
Q Now, did you hear gun shooting going on for a period
of time then while you were walking away from the camp area itself
toward
the ravine?
A Yeah. There was all the time.
Q All right. Now, about how long did you stay in the tent
area before you saw some other individuals back in the tent
A Quite a while.
Q All right. And when you came back to the tent area who
were the first people that you saw when you returned from down behind
the
tent area back to the tent area?
MR. LOWE: Objection, Your Honor. There's no foundation
that he came back to the tent area at this point.
THE COURT: Are you withdrawing your question?
MR. HULTMAN: I will withdraw the question, Your Honor.
Q (By Mr. Hultman) Did you subsequently come back to the
tent area?
A Yes, I did, later on.
Q All right. Now, when you did come back to the tent area
later on would you tell the jury who it was that you first saw?
A I saw Leonard and Dino and Bob.
{1030}
Q And where were they when you saw the three of them?
A The tent area.
Q And do you remember where spccifically, or with
relationship
to any particular object in the tent area?
A Well, they were loading up some radio equipment in the
red van.
Q All right. Now when you say the "red van" would you
describe
that to the jury, the color and the type of car, to the best of your
knowledge
as you knew it then.
A It looked like it was a '68 or '69 or '67. Looked like
a Travellall van with red color, white top.
{1031}
Q It was a white top, you say, and what was the other
color?
A Red.
Q Had you seen that particular vehicle earlier in the day
that day?
A No.
Q Had you seen the vehicle on previous occasions in the
Jumping Bull area?
A Yes.
Q Had you seen it on other occasions in the tent area?
A Yes. It was there the past weeks.
Q And do you know whose vehicle it was?
A No.
Q Did you kow who normally drove it?
A Yeah. Bob and Leonard.
Q Now when you went down that morning to the tent area
and was chopping wood and carrying water, was the red and white van
there
at any time earlier that day? Did you see it anytime earlier that day?
A I don't thik so.
Q But when you returned the vehicle was there at the time
you're now talking about?
A Yes.
Q Did anybody else come into the area after the three that
you're referring to?
A Saw Norman Challes later on, then after while everybody
{1032} came back in. Norman Brown, Mike Anderson.
Q Now what if anything took place then at that time, could
you tell the jury in your own words what were the events that took
place
at that time in the tent area?
A The first thing, we wanted to get out of that place,
so we decided to take the red van and get out, but after awhile changed
our minds. We decided to just walk out.
Q Now did Leonard during this time give any directions?
A No.
Q Who was it that decided that you would leave in the van,
if you know?
A I don't know.
Q Had you seen any radio equipment either in tent city,
or in the tent area before that particular moment?
A I seen it there weeks before but...
Q Was anybody using it?
A Not as I recall.
Q Did you see the radio equipment at any time in New Mexico
or on the trip back from New Mexico?
A Yes, I did.
Q And who did that equipment belong to, if you know?
A I think it belonged to Dino, Leonard or Bob.
Q But it was with you when you came from New Mexico, is
that right?
A That's right.
{1033}
Q Was there any discussion at that time concerning whether
or not all of you would leave together or leave separate?
A No. There was no discussion. We just happened to leave
together and stay together and walk out together.
Q Was anything said as to what would happen if somebody
didn't go as a part of the group?
A Yeah. For one thing if you left the group at that time
you would get arrested.
Q And who was it that indicated that?
A Leonard and Bob.
Q Did Leonard indicate anything else to you that would
happen if you didn't stay with the group?
A No.
Q Did you have any discussion with Leonard at that time
as to you personally leaving the area by yoursef?
A Yes.
Q And what did he tell you?
A He used to tell people that, like you run from your group
or if you run from a firing group the leader of that group will
personally
shoot him, shoot him.
Q And is that the reason why you stayed in the group at
that particular time?
A Yes. In this case Leonard was the leader.
Q Now did anybody leave the group before you actually left
the tent area?
{1034}
A No. It was -- little Jimmy.
Q And when you referred to little Jimmy, would you tell
the jury who little Jimmy was?
A It's a 12 year old boy at that time, full-blooded Sioux
Indian. Jimmy Zimmerman is his real name. He's from Rapid City.
Q Now were each of you because of the closeness to each
other, did you know each other by first names or by shortened names
like
little Jimmy you just referred to?
A Yes.
Q Did the other people know you by a specific name other
than the name of Wilfred Draper, did they have a nickname or short name
for you?
A Yes.
Q What is that, Mr. Draper?
A Wish.
Q So that when anybody refers to the name Wish, they're
referring to you, isn't that correct?
A Correct.
Q And that's the name that most everybody knows you by,
sort of a nickname or short name, right?
A Right.
Q Now how old, Wish, were you at this time?
A I was 18.
Q And you said little Jimmy was 12, is that right?
A That's right
{1035}
Q And who was it, was there somemody that was close to
little Jimmy as far as the group of people that lived in the tent area?
A Yes. There was a Jane Bordeau. It was Jimmy's oldest
sister. She was about 16 or 17.
Q Was there anyone of the fellows that was particularly
close to little Jimmy?
A No.
Q Did you have occasions to be with little Jimmy?
A Yes.
Q And what was it that was determined at that time
concerning
little Jimmy?
A You mean at the time when he left the group?
Q At the time that you're now referring to; yes.
A Well, one thing was that he was, he was frightened and
scared. We wanted to get away and so we let him go.
Q And where did he go?
A He went towards Jumping Bull's place.
Q And would you point out on the map the general direction
from the tent city that he went and where you saw him last. Would you
get
up so that you can with the pointer touch the map and show where he was
when he left and then where you saw him go.
A Right there (indicating).
MR. HULTMAN: Let the record show that he's poiining {1036}
in the general vicinity to the south and east of the tent area.
Q (By Mr. Hultman) Then, Wish, would you show us, show
the jury where it is he then walked as long as you saw him walk. With
the
pointer again, would you point out where it was that he went on that
occasion
as far as you could see him.
A I guess he came back towards Jumping Bull's place but
that's as far as I saw him.
Q You saw him going towards Jumping Bull's, is that right?
A That's right.
Q All right.
Now why was it, if you know, that the van was loaded?
A Well, we were trying to get all our stuff together to
get out of there, to move out.
Q And who was it, if anybody, or for what reason did you
change your mind?
A I don't know that. Just came up I guess. Decided to
change
our mind. We just walked out.
Q And so then what next did you do as a group?
A We just walked south, towards south down the ravine,
down the tree line and just kept walking. We walked for about maybe a
couple
hours, three hours, I don't Know. But it's quite awhile we walked.
Stayed
close to the creek and down the tree line.
Q Now during the course of the day, once you were in the
tent area and you heard some shots, did you at any time during the rest
of that day go anywhere from the tent city, from the tent {1037} area
toward
Jumping Bull's or up in the Jumping Bull area?
A You mean during the shooting?
Q Yes. Once you heard shots, from that point on.
A No.
Q So you don't know anything that took place up here in
any way as to what the events were from that point on, is that right?
A That's right.
Q And am I correct from your testimony that all of this
time you were in the wooded area?
MR. LOWE: Objection, Your Honor. It's either giving a
summation
or previous testimony or it's an outrageously leading question. In
either
event it's objectionable.
THE COURT: Sustained.
Q (By Mr. Hultman) Once the firing started, from that point
until the next four days, were you at any time in the Jumping Bull area
that's represented on this Government's Exhibit 71 except in the upper
extreme right-hand corner of the exhibit in the wooded area?
A No.
Q Now would you tell us, Wish, where you then went. Did
the group all go together except for little Jimmy?
A Yes.
Q And do you remember any of the things that any
individuals
were carrying? Did you carry anything with you when you left {1038} the
tent area?
A Yes. I was carryiny two brown bags.
Q And why were you carrying two brown bags?
A Because there was no other people that could carry them.
Q Were they your bags?
A No.
Q What was in the bags, if you know?
A There was dynamite fuse.
Q And did anybody give you any directions that you were
to carry those two particular bags?
A Yes. Bob told me to carry these so I said, "Okay."
Q And about how old is Bob Robideau, if you know, at that
time.
A About 27.
***Q Was Leonard carrying anything?
A Yes. He was carryring an AR 15.
Q When you say "AR 15, did you know the words "AR 15" back
at the time that we're now talking about?
A No.
Q Have you subsequently either by discussions with the
FBI or somebody else learned that what it was you described was an AR
15,
is that how you now know it?
A Yes.
Q I don't want you again to talk about things that you
may have learned since to describe, only the things that have {1039}
happened
then, you understand?
A Yes.
Q Would you describe for the jury as you remember what
that weapon looked liked, as you remember it then.
A Yes. It's a black, looked like a sub, semi-automatic
rifle.
Q Had you seen a weapon of that kind in the tent area
before
this day?
A Yes.
Q Had you seen it on more than one occasion?
A Yes.
Q Who had you seen it with? Who had had it?
A Joe Stuntz had it, Leonard had it, Bob and Dino had it.
Q So that the weapon you're describing is not something
that you had seen for the first time, you had seen it on a numher of
occasions?
A That's right.
Q And whether it's an AR 15 or not, you know the weapon
in terms of what it looked like because you had seen it many times
before,
is that right?
A Right.
Q I'm going to show you what's been marked as an exhibit
here and ask you if this weapon fits that general description.
I'm going to show you what's baen marked as Government's Exhibit
34A and ask you whehner or not the weapon that you had {1040}
previously
seen in the area with Mr. Peltier and others and had seen earlier that
day is one of a general description of the kind that I'm now holding in
my hand?
A That's right.
Q Let's talk about the others individually that you said
were with you at this time. Since Leonard had, or since Bob had
indicated
to you what you were to take, what did he take, if you remember?
A I think he had a --
Q Now I'm going to ask you again to describe to the jurv
what it was without referring to it specifically in terms of something
you may or may not have learned later. Do you uunderstand?
A Yeah.
He carried a rifle but at the time I don't know what type of
a rifle.
Q He carried a rifle, is that right?
A Yes.
Q Do you remember, did he carry anything else?
A Yes. He carried two in fact. One, was carrying a shotgun,
too.
Q So Bob had a rifle and a shotgun, is that correct?
A That's correct.
Q Now do you remember anything specific at that time about
either of these two weapons that you saw at that time and you {1041}
recall
very distinctly from that time? Is there any objects of any kind with
reference
to either of those two which would identify either of those two in any
way as to whom they may belong or who might be the owner?
A Well, the shotgun didn't belong to him and I guess he
picked it up from the agents.
Q Well, now again --
MR. HULTAM: Your Honor, I would ask the response now --
Q (By Mr. Hultman) You weren't down at the scene so you
don't know anything that you just now said to be a fact, isn't that
true?
A No.
Q You weren't down there so you don't know that happened,
is that right?
A That's right.
Q I want that very clear.
Now what I'm asking you is what is it that led you to a
conclusion
of the kind you just said: did you see anything on either of the
two weapons?
A Yes. The shotgun. The end of the stock had a little green
sticker that said, "Denver FBI."
Q Now I'm going to show you a weapon which has been marked
Government's Exhibit 36A and I'm going to direct you to the testimony
that
you just gave. Can you tell the jury from what you saw and observed
then,
not anything you may have seen or {1042} heard or anything since then
but
was the shotgun that you're talking about that he had at that time one
that resembled the shotgun that I have in my hand?
A Yes.
Q You don't know whether this is the shotgun or not, isn't
that true?
A Yes.
Q But there was something about the one that you saw that
looked generally like this that you identified at that time, and would
you tell me again what it was and where it was on the weapon?
{1043}
A It was at the end of the stock handle.
Q And what was it again?
A A little green sticker.
Q A little green sticker on it, and what was on the
sticker?
A Denver FBI.
Q Denver FBI, all right.
Had you ever seen this weapon or one that looked like it in the
tent area or any time before that day during the day?
A No.
Q Do you remember whether or not Mr. Butler was carrying
anything?
A Yeah. He was carrying a rifle, too.
Q All right. Do you remember whether or not anyone else
was carrying any weapons of any kind? Did you have a weapon?
A No.
Q Did Norman, was Norman Charles carrying anything?
A Yeah. Norman Charles was carrying one. Norman Brown.
Q And what was he carrying?
A I don't know the type it was.
Q Do you remember, can you give the jury just a general
description of what it was that he was carrying?
A It's a long rifle.
Q All right. Was there anybody else that was carrying any
weapons of any kind?
A Yes. There was Norman Brown, Mike Anderson.
{1044}
Q And do you remember anything about the weapons that any
of those men were carrying?
A No.
Q Now, were there any handguns or short guns of any kind
that you observed during this time that welre now talking about?
A Yes, I did.
Q And would you tell the jury with reference to any
individual
what it was that you observed with reference to any handguns.
A I saw 302 handguns.
Q Who had 302 handguns?
A Bob, Dino, Leonard.
Q All right. Each of them had handguns, Bob, Dino and
Leonard;
is that right?
MR. LOWE: Objection, Your Honor. Mr. Hultman is misstating
what this witness is stating. He's leading the witness. I state that
simply
as improper.
MR. HULTMAN: Let us approach the bench, Your Honor?
THE COURT: You may. (Whereupon, the following proceedings
were had at the bench:
MR. HULTMAN: Your Honor, the reason I've asked to approach
the bench is that I think it's very evident that this witness is
partially
hostile to the Government by his own testimony and his observations
we've
made thus far.
Secondly, it's obvious that he's afraid and I've been {1045}
doing the very best I can in order to elicit fair and honest responses,
and I will do my very best to continue it. I do want the Court to know
that there are going to be times when I am going to have to maybe be
leading
to some extent in order to get testimony which is testimony of which
has
been already given, and under oath, and that's the things to which I'm
only trying to get. And I think I have every --
MR. LOWE: Can you keep your voice down, please.
MR. HULTMAN: I think I have every right in the world in
light of testimony that is a matter of transcript under oath of which
we
know that testimony has been given to do everything within the rules to
secure true and honest and a full response to those particular
questions,
and that's the reason, Your Honor.
THE COURT: As I understand the objection in this case,
and I may not understand it fully, but it is my impression that the
objection
was directed to your simply repeating the answer of the witness.
MR. HULTMAN: All right. Is counsel saying that in repeating
the answer that that was not his answer just now?
THE COURT: It just places undue emphasis.
MR. HULTMAN: I will try to do my best.
MR. LOWE: I would like to respond. I don't think there's
any showing that this witness is hostile. He may not be an FBI Agent
and
just giving back the party line, but he {1045} certainly is not shown
to
be hostils. He is responding, he may be a little nervous, but a lot of
the witnesses that the Government has are nervous.
Until a clear showing of hostility, I don't think it's proper
to ask lesding questions under oath.
THE COURT: I might --
MR. HULTMAN: Your Honor -- excuse me.
THE COURT: I might comment that I have no observed that
this witness is particularly hostile. He may, I have observed, that he
may be hesitant. That is why I permitted you to go into questioning the
fact that he had answered the question under oath before. But at this
point
I have not observed any hostility.
MR. HULTMAN: All right, Your Honor.
Your Honor, this is another matter that I want to bring to the
Court's attention on the record now, and this is the reason why, among
others that I have attempted to, at least have four seats immediately
behind
counsel continuously, Your Honor. And I want to put it on the record
that
I have noted different signs and various things that have gone on in
the
courtroom when a witness of this kind is on the stand. And I would
request
of the Court that the Court make a note of anything that the Court
might
see during the course of the proceedings here, because it's very
obvious
as to where individuals are sitting in the room, what the interest of
those
{1047} individuals are, and to which they have a right. And I'm not
objecting
to that in any way, but the point that does concern me is that in no
way
does, can this witness be put in an atmosphere where he by any way of
intimidation
of any kind by the actions of anyone in the courtroom.
Now, specifically use the illustration, yesterday I sat and
watched
myself Dino Butler make specific signs as I asked the question to
witnesses.
I looked at him as I asked the question and that's just an illustration
of which I'm referring and that's what I'm referring to, Your Honor,
when
I say it's extremely difficult for counsel at a time or another to be
placed
in a posture where I do have to maybe be more leading than normally
would
be the case. But I do state to the Court that I'm trying in every way,
and I will do the very best I can, not to repeat or not to be leading.
I don't think that any of the questions at this particular point have
been,
or the responses, anything. But one what counsel knows is the ultimate
response is there, is a matter of record under oath already of what
that
response is.
MR. LOWE: I don't understand what he just said. I'm not
even going to try to respond to that. It made no sense whatsoever.
If he has a complaint about somebody in the audience he certainly
has proper remedies he can take to that. We {1048} certainly have no
control
over the people in the audience.
THE COURT: I will state that it was reported to that to
me that some court personnel, that they observed some individuals
making
signs when the witness was testifying yesterday. I did not observe it,
I have not done anything about it. If I do observe that, that person
will
be asked to discontinue. And if he doesn't discontinue, then of course
he will not be permitted in the courtroom.
MR. LOWE: I take no issue to that. I represent to the Court
that I did not know anything about it.
MR. HULTMAN: And I want the record made very clear by my
remarks, I in no way directed that in any way to counsel or anybody
directly
associated with counsel. That I want made very clear.
MR. LOWE: That does not give authorization for proper
questioning
of witnesses.
THE COURT: That is correct.
MR. HULTMAN: I understand.
Your Honor, I wonder what time we're going to take recess, Your
Honor.
THE COURT: In about five minutes.
MR. HULTMAN: Okay.
(Whereupon, the following proceedings were had in the courtroom
in the hearing and presence of the jury:)
Q (By Mr. Hultman) Now, when you left the tent area would
{1049} you tell us, Mr. Draper, what it is that happened and where it
is
you went, and if you'll take it in a sequence as you best remember it
did
happen. What direction did you go after you left the tent area itself?
A We went south. Like I told you we walked for a while,
maybe a couple of miles, couple hours, got to the road again.
Q Now, was there anything, in terms of a route that you
followed or reason that you went the direction that you went?
A No. We just went along the creek, the creek took us to
the road. When we got tothe road we got -- we found a culvert. We went
through the culvert to avoid the police cars and all the cars going
above.
We all went through the culvert.
Q Now, where would the culvert be located just in a general
sense from the area of the Jumping Bulls' that is represented by
Government's
Exhibit 71? Would you just turn around and maybe indicate to the jury
in
any way you can what direction it would be. Just with the use of the
pointer,
point out a direction.
A (Indicating.)
Q All right. Now, you pointed out a point. Would you now
point out for me, please,the direction then from that point that you
took
in terms of going along the creek so that the jury can approximate the
direction that you then went.
A There's a creek here (indicating). We went this way and
stayed along the creek until we got to the road.
{1050}
Q All right. Now, when you crossed under the culvert here,
was anybody with you specifically at that time?
A I was with Norman Charles and Mike Anderson. And the
other group has already went through the culvert and they were already
on the other side of the road.
Q All right. And did you catch up with them at any time?
A Yes.
Q And where was that?
A They waited there for us, and after a while we just got
out of the culvert and started running toward the hills to the --
Q All right. While you were running as a group toward the
hill did anything happen?
A Yes. The BIA officers spotted us and they started firing.
We ran quite a ways and they kept firing until some of our boys fired
back.
Q Do you remember anybody specifically that fired back?
A No.
Q All right. And where did you go then from that point?
A We ran up the hill until we got to the pine ridges there.
until we made it to the top, and by the time we got there it was
sometime
in the evening, it was close to nightfall.
Q And what if anything happened at that time?
A We stayed up in the hills for a while until nightfall
came. We started walking at night. Stayed in the hills.
Q And did anything happen at a later time that evening
other {1051} than walking?
A Yes. There was two riders that came to us, and I don't
know what happened then. I think Leonard or somebody talked with the
riders,
but they went back and we kept walking on.
Q Did you know who the riders were at all?
A Yeah. One was Leon Eagle. And I don't know the other
one. There was only two riders.
Q All right. And then what did you do next then?
A We just kept walking. By this time it was night and we
walked for about,I'd say, two, three hours, couple of miles, until we
got
to another place and got back to the highway somehow.
Another rider came up to us and took us back acroas the road.
Went towards a man by the name of Noah Wounded's place. This is back in
the hills.
Q Do you know who the rider was that took you to Noah
Wounded's?
A Ted Lame.
Q And was there anybody at Noah Wounded's when you get
to Noah Wounded's?
A Yes. There was Noah himself. He was living all alone.
Q And would you describe Mr. Wounded for us?
A Yeah. He looked like an old man in his sixties. Grey
hair.
Q And what if anything did you do there?
{1052}
A We stayed there that night. Rested up and he invited
us in.
Q All right.
A When we got there.
THE COURT: Court will recess until 11:25.
(Recess taken.)
{1053}
(Recess taken.)
THE COURT: The jury may be brought back in.
(Whereupon, at 11:26 o'clock, a.m., the jury returned to the
courtroom; and the following further proceedings were had:)
MR. HULTMAN: May it please the Court?
THE COURT: You may proceed.
MR. HULTMAN: Your Honor, at this time the Defendant and
the Government have agreed to a stipulation, in order that a witness
not
be called just for this purpose, and the stipulation is this:
That Exhibit No. 15 which has now been entered into evidence
was found on June 27, 1975, by Special Agent Ed Kelly in Special Agent
Ronald A. Williams' FBI vehicle which was located near the Tent City.
THE COURT: And so the stipulation may have some meaning
Exhibit 15 is that piece of paper --
MR. HULTMAN: (Interrupting) That is the piece of paper,
your Honor, that we have been referring to that has various, three
names
on it and so forth.
MR. TAIKEFF: We have so stipulated, your Honor.
THE COURT: Very well, the stipulation is received.
MR. HULTMAN: Now, would the reporter read back to me the
last question -- no problem.
Q (By Mr. Hultman) I believe we were at a point where you
{1054} were at Noah Wounded's, is that correct?
A Yes.
Q I believe you described him as being an old man, is that
right?
A That's right.
Q Now, what, if anything -- would you tell us what night,
if you know, this was that you were at Noah Wounded's?
A The night of the 26th.
Q All right. This is the night of the day on which we are
talking about, is that right?
A That's right.
Q Now, did you stay there all evening there?
A Yes.
Q And what, if anything, did you do the next day?
A Well, we stayed there all day, and at nightfall we
started
walking.
Q All right, and did you have any basis for any direction
to go, anything to help you that night?
A Well, Noah Wounded drew us a map which way to go. Our
destination was Manderson, and we took off for Manderson.
Q And who was it that had the map then?
A It was Bob.
Q Al] right, and what did you do from that point on?
A Well, we walked on towards Manderson.
Q Did anybody else have the map during the course of that
{1055} evening?
A No.
Q I would direct your attention to an earlier time when
you were asked the very same question under oath as to who had the map.
Do you remember being asked that question at some other time?
A Yes.
Q And do you remember your response at that time as being
Peltier?
A No.
Q All right. You wouldn't -- you don't dispute that you
may have given that response at another time?
A Maybe Peltier carried the map some of the way, I don't
recall, but it was given to Bob.
Q All right. So that as you recall it and as you best
recall
it, here in this courtroom in answering truthfully it is the response
you
have given here today, is that right?
A That's right.
Q All right. Now, where did you go then that night?
A Well, we were headed to a girl's house in Manderson,
instead we ended up -- we were going towards Pine Ridge; and we walked
all night and no sign of Manderson; and so the next morning, daybreak,
we decided to stay in the hills again under some brushes, and we stayed
there all day until nightfall again, and we walked again.
{1056}
Q All right. Now, the night that you were walking to Morris
Wounded's house, did you ever overhear any conversation between any of
your group?
A Yes, I did.
Q And would you tell us who the people were?
A It was Dino, Bob and Leonard.
Q Al] right, and would you tell the jury what, if anything,
you heard at that time?
A Well, they said something about a car, an agent's car;
but I don't recall, and they said something about moving him around. I
don't really remember.
Q Do you remember who specifically said anything at that
time?
A No. Could be -- but it was ciming from the direction
where Leonard, Dino and Bob was walking.
Q If I were to direct your attention to an earlier time,
closer in time to the event itself, and you were asked this question --
MR. LOWE: (Interrupting) May we have a side bar, your
Honor?
THE COURT: You may.
(Whereupon, the following proceedings were had at the bench:)
MR. LOWE: I think, your Honor, that this witness has
answered
this question fully and fairly. I do not think it is proper for counsel
to read from prior transcript to {1057} this witness for the purpose of
impeaching that information before the jury.
I think if your Honor wants to have a hearing outside of the
presence of the jury in which there is some inquiry to refresh his
recollection
from earlier testimony, I would have no objection.
Counsel knows very well what he is doing. He keeps getting
testimony
which was impeached by cross examination before the jury, and I would
ask
further that if counsel is going to refer to a transcript that he
identify
the transcript by date and page number so we can follow along with it.
MR. HULTMAN: Your Honor, I will do that, and I will do
it right now; and I am sure counsel --
THE COURT: (Interrupting) Again I think his objection is
to your reading the question and answer. I think perhaps what you
should
do is show it to him and ask him to refresh his recollection.
MR. HULTMAN: I will be glad to follow that procedure.
THE COURT: Show it to him and ask him to read it to
himself,
refreshing his recollection. Have him establish that he was in fact
asked
that question and that he did give an answer.
MR. HULTMAN: I was trying to save some time, and I will,
your Honor.
{1058}
I want the record to show that the question I am referring to
is found at Page 938 of the transcript of the last trial. It is a
question
and a response of this witness and the question is:
Now, during this time that you were walking through the night,
can you tell me whether or not there was any conversaticn about what
happened
to the agents?
The answer: The night we were talking to Morris Wounded's
house, I heard Dino and Bob and Leonard talking about the agents.
Leonard
said something like this, "I helped you move them around the back so
you
could shoot them" Maybe he was talking about Butler or Bob. I don't
know
who he was talking about that night.
That is the response to which I am directing my inquiry, your
Honor, and I will follow the procedure the Court has indicated.
MR. LOWE: It is just very difficult when you say "previous
proceeding" without identifying the transcript date or page number, tc
pick up where you are.
MR. HULTMAN: I will do so.
THE COURT: Very well.
(Whereupon, the following proceedings were had in the courtroom
in the presence and hearing of the jury:)
Q (By Mr. Hultman) Mr. Draper, I am going to show you a
part of a transcript, Page 938, of a previous transcript at a {1059}
previous
time when you were under oath, which I will now do, and ask you to look
at it and ask whether or not this in any way refreshes your
recollection
as to having been asked a question and having made a response under
oath?
A (Examining).
Q Does that refresh your recollection?
A Yes.
Q Do you recall having been asked that question and then
giving a response?
A Um-hum.
Q Now, I would ask you the same question and ask you
whether
or not you can respond more fully with your recollection refreshed?
A I can't remember that much.
Q Well, you are saying that you don't remember back at
the time this statement --
A (Interrupting) Yes.
Q You are not in any way saying that what you said at that
time was not a correct statement of your memory to the best of your
abi]ity
at that time?
A Well, it was something like that.
MR. HULTMAN: All right, Your Honor, might we approach the
bench again?
THE COURT: You may.
(Whereupon, the following proceedings were had at the {1060}
bench:)
MR. HULTMAN: Your Honor. I am now in a posture -- that's
the reason I have come to the bench -- that I think it is appropriate
that
I be able to read that question and that response.
MR. LOWE: We object, your Honor. This witness is testifying
today, what he is testifiying to is his recoIlection, the best he knows
it. He said it might have been something like that. That's different.
He
has not said that was his correct testimony, and the fact is during
cross
examination he changed it substantially last year.
MR. HULTMAN: I don't agree with that at all. Your Honor,
I think the record will show that this is a fair and accurate statement
of what he said and is exactly what he said at that time.
I think it is proper for me now, as counsel has done many times
earlier, to continue to use a transcript and continue to do, properly
to
read the exact response itself. I have a right to do it from the
standpoint
of impeachment. I have the right to show he is a hostile witness. This
is a straight factual statement, and without -- under Rule 607, and
that's
what I would now propose, your Honor. I do -- I will not propose
anything
except out of the presence of the jury before I would do anything.
That's
why I asked {1061} for a side bar.
MR. LOWE: We object to it, Your Honor.
THE COURT: Well, under the new Rules of Evidence, you are
permitted to impeach your own witness, and he does recall having given
that testimony.
MR. HULTMAN: That is correct.
THE COURT: So I am going to allow it to be done.
MR. LOWE: The record has our objection.
THE COURT: Yes, your objection is on the record.
(Whereupon, the following proccedings were had in the courtroom
in the presence and hearing of the jury:)
Q (By Mr. Hultman) Mr. Draper, in response to the question
at the time in which we have been referring, is it not a fact that your
response was:
The night we were walking to Morris Wounded's house I heard Dino
and Bob and Leonard talking about the agents. Leonard said something
like
"I helped you move them around the back so you could shoot them." Maybe
he was talking about Butler or Bob. I don't know who he was talking
about
that night.
End of response.
Do you remember making that response?
A Yes.
Q Was that response at that time to the best of your
knowledge
a true response on your part?
{1062}
A No.
Q It was not.
What about it was untruthful on your part?
A I can't remember. I just don't place it.
Q Maybe I am not communicating. Are you are saying that
here and now you don't remember, is that what you are saying?
A I remember it, but I don't remember what was really said,
is what I am trying to say.
Q Let's start with here in the courtroom at this moment.
Do you remember on the night specifically what was said in that
conversation
right here and now?
A No.
Q You do remember there was a conversation?
THE COURT: Counsel approach the bench.
(Whereupon, the fo]lowing proceedings were had at the bench:)
THE COURT: It has just been called to my attention by the
Clerk that that large gentleman in the green shirt has been seen
signaling.
MR. HULTMAN: That is Mr. Peters.
THE COURT: After the Clerk called it to my attention, I
watched it and I observed, after the question was made, he did make a
signal.
MR. LOWE: Could we take this up out of the presence of
the jury? I am not sure --
{1063}
MR. HULTMAN: (Interrupting) We ought to do it now before
I ask any more.
THE COURT: This gentleman is going to have to refrain from
any further activity of that kind or he is going to be ejected from the
courtroom and not permitted to return.
MR. LOWE: Judge, I do not know who -- first of all, I don't
know who you are referring to. I don't have any control over him.
THE COURT: I know.
MR. LOWE: You are directing the comment to me. I don't
want the jury to get the wrong impression.
THE COURT: I suppose I am directing it to you because
obviously
he is trying to help your side of the case. That's what you call guilt
by association.
MR. LOWE: I think is right.
What I am wondering is, I don't want anything like that said
in the presence of the jury.
THE COURT: I appreciate that.
MR. LOWE: If you would like to excuse the jury perhaps,
you know, for lunch or something, but I did not see it. I don't know
anything
about it.
MR. HULTMAN: Let me on the record state: This event
has been observed a number of times by counsel at the counsel table and
with this specific individual this {1064} morning. If my knowledge is
correct
--
THE COURT: (Interrupting) Who is it?
MR. HULTMAN: That's what I am now about to say. It is a
man by the name of Ernie Peters.
THE COURT: The big gentleman in the green shirt?
MR. HULTMAN: That's correct, and he, your Honor, I think
it can be shown, is one who may have a very personal interest in this
particular
case; and so I think it is a matter that we ought to take up, and we
saw
-- because now this is the second time that counsel at the table has
observed
it. First I personally observed it with Mr. Butler yesterday and on
more
than one occasion. Secondly now it was observed -- by Mr. Peters.
This, your Honor, I might indicate is something -- and again
I want the record to show clearly that it has no bearing on counsel or
any reflection on counsel; but this same type of activity, I can say,
has
happened with witnesses in other trials and that's the thing that
concerns
me; and I think it ought to be resolved without the jury in any way
knowing,
as counsel has said.
THE COURT: Well, yes, I am going to ask the jury to leave
the courtroom at this time; and I am not going to let anybody proceed
with
this witness until we get this matter resolved.
MR. SIKMA: Your Honor, I might state further, I have {1065}
turned around on a number of occasions while we were at the bench, he
was
doing the same thing; and the man to his right was making the same kind
of motions.
MR. HULTMAN: This is not to infer, your Honor, and I want
to show on the record that the Government is not making any showing
that
there is a relationship between the parties, but that it is an act
being
committed which could have impact on the witness. That's the point I
want
to make.
MR. TAIKEFF: I am sure that Mr. Hultman at the very least
will appreciate what I am about to say. Mr. Engelstein has suggested
that
if, indeed, there are signals, Mr. Engelstein knows he is sending him
the
wrong signals.
MR. LOWE: Judge, I don't know when you would plan to
recess.
We are very close to the noon hour. Would you be excusing the jury and
taking the matter up and let the noon recess begin early?
THE COURT: I intend to bring the jury back again.
{1066}
(Whereupon, the following proceedings were had in the courtroom
in the hearing and presence of the jury:)
THE COURT: Members of the jury, as I've mentioned to you
before prior, there are inconveniences caused to you because of matters
that must be taken up out of your presence and this is not just a rule
of the Court, it is the requirement of the Law. So we are faced with an
interruption of this kind right now.
I am going to continue the trial until 12:30 before we recess
for the noon but there is a matter which I have to take up out of the
presence
of the jury at this time and so I am going to ask that you retire to
your
jury lounge for just a few moments.
(Whereupon, the following proceedings were had in the courtroom
without the hearing and presence of the jury:)
THE COURT: Before the Court commenced this morning it was
reported to me that yesterday afternoon while Mr. Anderson was
testifying
there were certain individuals in the audience that were signaling to
the
witness. I had not observed that because I was not paying any attention
to the audience, inasmuch as everything had been quiet, relatively
quiet
and uneventful. I instructed court personnel to observe today and to
inform
me if any additional signal was detected. I have just been informed
that
a gentleman in the audience was {1067} singaling. After I was informed
I watched that gentleman and I did observe signaling to the witness.
I'm
not going to identify the gentleman. He knows who he is. I am simply
stating
that that will not be permitted. If it is continued, if it is observed,
the person who has been observed indulging in the tactics of that kind
will be removed from the courtroom and will not be permitted to again
re-enter
the courtroom during this trial.
I am not taking any action at this time because I want there
to be no misunderstanding as to the position of the Court and as to the
results or consequences of any continued activity of that kind.
MR. ELLISON: Your Honor, I would like to make one statement
for the record. Several persons have pointed out to me and other
members
of the defense team, while witnesses on the stand are undergoing
cross-examination,
attorneys for the government have been seen to either shaking their
heads
or shaking no; shaking their heads yes when they like the response,
shaking
their heads no when they don't like responses. If the Court is going to
watch the spectators, I would also appreciate if the Court would watch
Counsel.
THE COURT: The Court has watched Counsel for both sides.
The Court has observed some expressions somewhat similar to what you
have
referred to. The Court has also {1068} observed, particularly one
member
of the defense counsel who has made some very obvious indications of
extreme
displeasure when the Court has ruled on a certain matter and I would
ask
Counsel for both sides to conduct themselves professionally and to
refrain
from any indications of pleasure or displeasure with the testimony of a
witness or the ruling of the Court.
The jury may be brought back in.
(Whereupon, the following proceedings were had in the courtroom
in the hearing and presence of the jury:)
THE COURT: You may proceed.
Q (By Mr. Hultman) Mr. Draper, where did you go that
evening
then?
A We went to Pine Ridge and when we got to Pine Ridge we
were looking right over Pine Ridge and somebody realized that this was
a mess and from there we went to a man's house by the name of Lawrence
Wounded which is out in the country about a mile north of Pine Ridge.
We
stayed there that night. They invited us. They welcomed us.
Q Now who was there at that home?
A Lawrence Wounded's wife.
Q Was there anyone else that you are --
A No. I don't recall anybody.
A And about what age is she: a young woman, a middle
aged woman or an elderly woman, do you recall?
{1069}
A Between elderly and middle aged.
Q Now what if anything did you do next?
A We stayed there all the next day and the next evening
of the next day and went to Porcupine. We stayed at a man's by the name
of Oscar Bear Runner. We stayed there four or five nights. Then from
there
that's the last time I seen the group.
Q And was there anybody else there at Oscar Bear Runner's?
A Yes. The family. The family was there.
Q Could you tell us who by way of family do you mean?
A He has three sons and his wife.
Q Do you remember any of the sons' names?
A Dennis and Don and Edgar.
Q Now how did you leave the Bear Runner's?
A Well, I met -- after we went to Bear Runner's, people
came to Bear Runner's and one of those people that came there was a
woman
by the name of Evelyn Bordeau, that's Jimm's mother. From there I met
with
her and some older people and they told me about how the government and
they have --
Q I'm not interested in what somebody else may have told
you at this particular point. I'm interested in what you saw and
observed.
Did anybody leave Bear Runner's with you when you left Bear
Runner's?
A Yes.
{1070}
Q Who left Bear Runner's with you?
A I left with Edgar and his wife and three other males.
I don't remember and Evelyn and Jimmy.
Q All right.
How did you get transportation wise to Bear Runner's, if you
recall?
A Well, from Lawrence Wounded's a woman came to his house,
it was Lou Lame and her husband.
Q Who went with you?
A Well, it was a car. I went with Leonard, Dino and Bob.
There was two trips to Porcupine that night.
Q The first, did you go on the first trip or second trip?
A No. The second.
Q And in the second trip who was it that went in the second
trip, who were all the people?
A There was Norman, Norman Charles and Norman Brown, Mike
Anderson and Jeannie, Neelock and Lynn.
Q And are they in age younger than the group that you went
with?
A Yes.
Q Do you know approximately how old Dino Butler was at
this time?
A About 30.
Q Do you know approximately how old Mr. Peltier was at
this time?
{1071}
A About the same.
Q Do you know approximately how old Mr. Robideau was? Maybe
I've asked you that question earlier.
A 27, 28.
Q And you went with those three persons, is that right?
A That's right.
Q Now it's my understanding then from your testimony that,
how was it that you then left from Bear Runner's?
A Well, we left with Edgar's station wagon. I spent the
night in Porcupine there, the town, some houses. Edgar's mother's
place.
The next day --
Q Did anybody leave with you when you left?
A Yes.
Q Who was it that left with you?
A Evelyn, Jimmy, Edgar and his wife and three other guys.
Q Do you know who the three other guys were?
A No.
Q All right.
Did any other of the members of you group that had come from
the tent city area during the days that you're referred to beginning on
the 26th of June, 1975, did any of them leave before you did?
A Yes. They left before us about -- let me see. We left
on the same evening but they left a couple hours before. They went
towards
Rose Bud.
{1972}
Q Would you tell us who left before you did?
A There was Leonard, Neelock, Dino, Jeannie and Mike,
Norman
and the other Norman Charles. They went towards Rose Bud in two cars.
Q Did you see them after that then?
A No.
Q In the immediate future?
A No.
Q Then where did you go?
A I went to porcupine and then from Porcupine the next
morning I went to Rapid City with Evelyn Bordeau and Jimmy and some
more
people and those three persons I met with and I stayed in Rapid City
one
night there. Then we left for Canada the next morning and I stayed in
Canada
for about five months until there came a time, No use of running," so I
just came home from Canada. It was in the winter, about December, and I
come home to Arizona. As soon as I got back in the FBI, police officers
were waiting for me.
Q Now while you were in Canada, did you use any other name
than the name Wish or Draper?
A Yes. Yeah. I used Wish and I used David Many Horse.
Q What was the reason that you did?
A Because I was pretty scared and I didn't want to ever
let nobody know I'm here.
Q Are you scared at this very moment?
{1073}
A No.
Q When you went by automobile with this woman from
Wounded's
to Bear Runner's, what did you do if anything with the guns in the bags
and the things that you had with you at that time? The whole group now
I'm referring to.
A Well, we put it in the trunk of the car, of the car and
traveled like that.
Q Now did you leave when you left Bear Runner's with any
of the objects that you described that various people carried from the
tent area?
A No.
Q Did you keep the bags that you referred to with the
things
that were in it?
A No.
Q Who took those?
A Well, the group took that and went on to Rose Bud.
Q And was that true with all of the rest of the weapons?
A Yes.
Q And who was it that was in that group?
A There was Leonard, Dino and Neelock, Mike, Norman Charles
and Norman Brown and Jeannie.
Q Now have you, Mr. Draper, in any way been given any
promises
of any kind by anyone either in law enforcement or by myself or anybody
in the U.S. Attorney's office, anyone? Have you been given anything in
response for coming to testify {1074} at this time or at any time?
A No.
Q Has something happened that you might in your own mind
conclude because you could possibly be a witness that may or might not
have been done?
A Yes.
Q There were some charges at one time or another. There
were some questions asked of you at a previous time under oath about
some
possible charges of some kind, is that correct?
A Yes.
Q And have you ever come to trial as far as any of those
charges in any way?
A No.
Q Is there any relationship in any way as far as you know
between any of those other events and your testimony here in this
courtroom
today or in any other courtroom at any other time as far as you are
concerned?
A No.
Q So is it fair for me to conclude --
MR. LOWE: Objection, Your Honor. Obviously it's a leading
question coming up. I don't see how it can be anything else.
MR. HULTMAN: If you wait until I give the question --
{1075}
MR. LOWE: I don't have to wait for the question. That will
tell the witness what he wants him to say.
MR. HULTMAN: I just want to ask him if to the best of his
ability he has told the truth in the courtroom.
MR. LOWE: It didn't sound like you were starting that
question.
MR. HULTMAN: That's the question I intended to ask.
THE COURT: The question will be permitted.
Q (By Mr. Hultman) Have you to the best of your ability
told the truth as you now here in the courtroom today best remember the
events?
A Yes.
Q And is that without any promises or any inducements or
any threats on the part of anybody in any way having to do with the
government?
A No. No threats. No promises.
MR. HULTMAN: I have no further questions, Your Honor.
MR. LOWE: May I have just a moment, Your Honor?
THE COURT: Yes.
CROSS-EXAMINATION
BY MR. LOWE:
Q Mr. Draper, my name is John Lowe. We have met before
several times, haven't we.
A Yes.
Q And on two different occasions, one last summer and one
last night, we were granted a consent interview with you, were {1076}
we
not?
A Yes, you were.
Q And you voluntarily talked with me about that time,
didn't
you?
A Yes.
Q I wanted to ask you some general background questions
first, Mr. Draper.
First of all, I don't remember whether this was brought out or
not, are you a believer in the ancient Indian religion of the pipe?
A Yes.
Q During the time you were spending several weeks in the
Jumping Bull area were there religious ceremonies conducted that you
were
aware of?
A Yes.
Q Would it be fair to describe those as sort of like what
some other people would know as a church service but relating to the
pipe?
A Yes.
Q Were there sweat lodge facilities?
A Yes.
{1077}
Were those spiritual in nature when you used the sweat lodge?
A Repeat it again.
Q Was that a religious part of your religious beliefs when
you used the sweat lodge?
A Yes.
Q Is that among other things for purification of you?
A Yes.
Q Did most of the members of the encampment participate
in these various religious activities?
A Yes.
Q Did Leonard Peltier participate in them?
A Yes.
Q Are you now, or have you ever been a member of the
American
Indian Movement, AIM?
A Yes.
Q At the time this took place were you a member?
A Yes.
Q I want to pick a point to start on one area of inquiry,
Mr. Draper, when you left the area and you were on this three or four
or
five day, traveling with the group after the events look place. And you
mentioned at one point you were at Oscar Bear Runner. And you indicated
that you talked with, or you were present when someone talked with
Evelyn
Bordeau. Am I remembering correctly?
{1078}
A Yes.
Q And you were about to tell us what Evelyn Bordeau
reported
to the group and I ask you now, for the purpose not of showing whether
what she said was true or not, but to show state of mind of the people
who were listening, if you will tell what it was that Evelyn Bordeau
said.
A Well, this was at Bear Runner's and she told us that
there were agents everywhere looking for you all. And she told me and
Jimmy,
"I'm going to have to take you guys someplace away from all this."
Q Did she say -- I'm sorry, I thought you were through.
Go ahead.
A She told us, "We'll take you Canada."
Q All right. When she was talking about the agents, did
she say anything about the conduct of the agents?
MR. HULTMAN: Well, if it please the Court, this is clearly
-- I haven't objected at this point, but now all of this is clearly
hearsay.
And I object on this grounds from this point on, Your Honor.
MR. LOWE: Your Honor, I made, in order to be absolutely
fair to counsel and to the Court, I made a clear statement that I was
offering
this evidence for proof of utterance and not for proof of the truth
that
was stated. That's a well-recognized comment and exception to the
hearsay
rule.
THE COURT: He may answer as to whether or not she said
{1079} anything about the conduct of the agents.
MR. LOWE: Thank you.
THE COURT: You cannot go beyond that.
A Well, I don't really recall about what she said about
the conduct of the agents.
Q (By Mr. Lowe) You don't recall?
A (No response).
Q Do you remember anything else she said at that time?
A No.
Q Okay. At that time or sometime fairly close after that
did Evelyn Bordeau say anything to you specifically as to why you
should
go to Canada?
MR. HULTMAN: Well, if it please the Court, I object on
the grounds that this clearly calls for hearsay. And I have no
objection
is counsel call this witness as to anything she said. This is an
attempt
to get into the record things that are clearly hearsay at this point.
MR. LOWE: We offer it for proof of utterance to show the
state of mind of this witness as it affects testimony here today, as it
affects other matters, and for no other purposes. So it's an exception
to the hearsay rule, Your Honor.
THE COURT: I will allow the witness to answer the question.
A Can you repeat it again?
Q (By Mr. Lowe) Yes.
{1080}
Why did Evelyn Bordeau you should go to Canada?
MR. HULTMAN: Well, I think there's a preliminary question
to this, Your Honor. If he knows. And that's the only objection at this
point I'm making.
MR. LOWE: I'll rephrase the question, Your Honor.
Q (By Mr. Lowe) What did Evelyn Bordeau tell you was the
reason you should go to Canada?
A Because all of us would get charged with what happened
there at Pine Ridge and Oglala, and she was protecting her son, she was
protecting me, too.
Q What did she say you'd be charged with?
MR. HULTMAN: Well, now again, Your Honor, I object to this
as going beyond, and again object on the grounds of hearsay.
MR. LOWE: Again, Your Honor, we offer it for proof of
utterance.
And I think I'm entitled to do that to show why this witness took
certain
actions and how it affects his state of mind right now and in earlier
testimony
or interviews.
THE COURT: The jury, I will advise the jury at this time
that the exchange between the lawyers relates to a technical and
sometimes
difficult and complicated question, legal question of law. The answers
which this witness is giving relating to what this other person told
him
are being permitted solely for the purpose of bringing out that this
statement
was in fact made. Not whether or not the statement {1081} was
justified,
whether or not the statement was true, but just the fact that the
statement
was made.
And on that basis the Court will permit the witness to answer.
Q (By Mr. Lowe) Do you remember the question?
A No. Repeat it.
Q I'll just withdraw it and ask it again.
What did Evelyn Bordeau tell you you would be charged with or
would happen to you?
A She said, "You guys would be charged with murder."
Q All right. When she told you that did you either at that
time or over to the next period of a day or so think about what she
told
you?
A Yes.
Q Did it worry you?
A Yes.
Q Did you think about what it would be like possibly to
spend the rest of your life in prison?
A Yes. I thought about it.
Q Is that one of the reasons why you went to Canada?
A Yes.
Q At some point while you were in Canada, either through
the suggestion of somebody else or just through your own thinking about
the situation, did there come a time when you thought that if you
cooperated
with the FBI, or told them what they {1082} wanted to know, that it
might
prevent your being charged with murder?
A Yes.
Q And did you leave Canada and return to the area where
you lived in Arizona?
A Yes.
Q When you got there did there come a time very shortly
after you arrived when you were confronted by an agent of the FBI?
A No.
Q All right. Did there come a time when you were confronted
by some law enforcement officer while you were in Arizona?
A Yes.
Q Will you tell the jury what happened.
A When I was in a pickup driving with this guy we had some
beer and we were drinking. And there was a car coming in front of us,
and
it was a police car. And there was an FBI in there, and there was a BIA
policeman.
I guess they recognized me and there they pulled me over; and
from there they told me about the subpoena of Rapid.
Q What was the first thing they did when they made contact
with you by voice? What did they do?
A They just said the FBI, what he did was he came towards
me and said, "Are you Wish?" I says, "Yeah." He told me, "Were you in
Pine
Ridge last summer?" I said, "Yeah." and then {1083} he asked me that a
subpoena out here for me from Rapid City.
Q Now, is that the first thing he did, contact, or was
it about something you were doing?
A That was the first contact.
Q Did he have his weapon drawn?
A Yes.
Q What kind of a weapon did he have drawn, do you know?
A A pistol.
Q And do you know who it was that did this and had the
weapon draw?
A Yes.
Q Who was it?
A It was Charles Stapleton.
Q It he a special agent with the FBI?
A Yes.
Q What if anything was said about your drinking beer at
that time?
A Nothing was said, but they just booked me for the beer
charge and they took me to jail. And I spent the night in jail.
Q All right. I don't think you stated what time of the
day was this that they saw you in the pickup?
A About 5:00 in the evening.
Q And about how long was it before they took you down to
the jail?
A About three hours.
{1084}
Q Now, is that before they took you to the jail?
A Yes.
Q Where were you up until that time?
A I was in an office, and there they took me in there and
they asked me all kinds of questions.
And they took my wallet and they took all kinds of papers I had
with me and they put it in a plastic bag. And the said, "We're going to
use this as evidence," and I just went with them freely. And they put
me
in a chair and handcuffed me and tied me to the chair.
Q How did they tie you to the chair?
A I was handcuffed in the back like this (indicating) and
he got a belt and put it around the chair and buckled it around me, and
the chair with it.
Q Had you made any attempt to run or anything up until
that point?
A No.
Q Had you said anything to them about trying to escape
or run or anything of that nature?
A No.
Q Did that scare you when they did that?
A Sort of scared me, yeah.
Q Were the handcuffs tight?
A No.
Q And they talked to you that way for three hours?
{1085}
A Yes. And they talked and they called all over the places.
Q Did you give them permission to look at your wallet and
the papers in it?
A No.
Q Did they take it nonetheless?
A Yes.
Q Now, who was present while this was going on?
A There was another BIA special agent, Frank Gadake.
Q All right. Where did you spend the night?
A In the jail.
Q And where, what town was that in?
A Chinle.
Q What happened the next day?
A Well, they took me to Gallup, that's in New Mexico, and
there I met some more agents.
Q Who else did you meet there?
A James Doyle.
Q Anybody else?
A Ken Oliver is an agent from Gallup and Mike Ness.
Q All right. What happened there?
A And he told me about what happened in Pine Ridge and
they asked me about what happened up there. And they said, "We'd like
to
have a statement from you," things like that.
Q Did they tell you in detail what had happened at Pine
Ridge?
{1086}
A No. They just told me about what happened, and I just
told, gave a statement. Then from there they took me home. Within a
week
we went to Sioux Falls, to the Grand Jury.
Q All right. Now, did Special Agent Stapleton and Special
Agent Doyle both talk to you there in Gallup?
A Yes.
Q What did they tell you would happen to you if you didn't
cooperate with them?
A Well, they asked me you'll get indicted.
Q Indicted for what?
A Murder charge.
Q Did that scare you?
A Yes, it did.
Q Did it sound to you like Evelyn Bordeau had been right?
A Yes.
Q Over the years prior to that event while you were sitting
in Gallup, New Mexico, did you have a general awareness of the presence
of the FBI on the reservations and near where you were living?
A Yes.
Q Did you have a general sense that the FBI had a lot of
power to do things?
A Yes. In a way I thought.
Q Did you have a general feeling that they could pull
strings
to make things happen when they wanted to?
{1087}
A Yes. I had a general sense.
Q So when Special Agent Doyle and Special Agent Stapleton
told you if you didn't cooperate you would be indicted for murder, did
you believe them?
A Yes.
~Q Where did you go next?
A Well, we went to -- I went to Albuquerque with Doyle,
and we flew out of there and went to Rapid. And from Rapid we went to
Pine
Ridge again, the reservation.
And they showed me where, took me back to Jumping Bull and Oglala
and went to Bear Runner's place again and Morris Wounded's house. Then
from there we went to Pierre and spent the night there, and the next
day
we went to Sioux Falls and went to the Grand Jury.
Q Now, in addition to telling you that if you didn't
cooperate,
that you would, that they would indict you for murder, did they tell
you
what would happen if you would cooperate? What they were willing to do?
A No. They just said --
Q Let me ask you specifically, did they tell you if you
would cooperate that they would protect you?
A Yes.
Q Did they tell you they would give you a new identity?
A Yes.
Q Did they tell you they would get you a job somewhere
else?
{1088}
A Yes.
Q Did they tell you they'd get you education or training
if you needed it?
A Yes.
Q Did they tell you they could take care of you
financially?
A Yes.
MR. HULTMAN: Might I interpose, Your Honor, voir dire?
Just one or two questions to interpose an objection?
MR. LOWE: I would object. There was no objection to any
questions that were just asked. They're answered and I want to move on.
THE COURT: Well, there's no question pending right now.
MR. LOWE: That's right.
Q (By Mr. Lowe) I show you what has been marked for
identification
as Defendant's exhibit 90, and I will ask you to take a moment and read
that through.
MR. HULTMAN: Your Honor, could I renew my request of the
Court in order that I might enter an objection to the last question
that
was asked and the response that was given in order that I might have
the
opportunity to then move if possible to have it stricken?
Counsel, would you just let me finish, please.
MR. LOWE: I thought you were finished, Mr. Hultman. You
stopped, you voice stopped, and I thought you were {1089} finished. I'm
sorry, I didn't mean to interrupt you.
MR. HULTMAN: In order that I might set the basis, Your
Honor, for an objection, it would only be one or two questions at the
most.
THE COURT: On redirect you will be permitted to ask the
question that you now are suggesting that you'd like to ask at this
time.
And if you establish a reason why the answer should be stricken it will
be stricken.
MR. HULTMAN: All right. Thank you, Your Honor.
THE COURT: Very well.
MR. HULTMAN: Counsel, when he's finished might I look at
the exhibit, too?
MR. LOWE: Certainly.
THE COURT: The court is in recess until 1:30.
(Recess taken.)
{1090}
AFTERNOON SESSION
(Whereupon, at the hour of 1:22 o'clock, p.m., the trial of the
within cause was resumed pursuant to the noon recess heretofore taken;
and the following further proceedings were had out of the presence and
hearing of the jury in chambers, the Defendant being present in
person:)
THE COURT: Because this is a rather
sensitive matter, I decided to ask you folks to come into chambers
rather
than to bring it up in the courtroom, even though the jury would be
absent.
After that incident this morning, in which I made the comment that
someone
in the audience was observed signaling, another member of the audience
came to the Clerk of this Court and advised the Clerk -- apparently
this
person had been observing for a day or two -- it appeared that the
Defendant
was using the pipe, holy pipe as a means of sending signals to
witnesses,
by changing the position of it, moving the feathers; and I am not going
to pass judgment on it one way or the other. I am simply asking, if
there
is any reason why the pipe could not be covered and left covered.
(Counsel and Defendant confer.)
THE COURT: Now, the reason I asked the question as to
whether
it can be covered, I recognize the possibility that there may be some
significance
in the culture to have it uncovered; but on the other hand, if there is
any {1091} possibility that it is being used for signaling witnesses,
particularly
witnesses of the Indian race, I am not going to permit that to go on.
MR. LOWE: Was there any specification as to what the
significance
of what was being done was or what was allegedly being done, so we have
something more to go on?
THE COURT: It was told to Ralph.
MR. HANSON: As it was related to me, this person felt there
was some significance in the feathers being placed in front of the pipe
and then back of the pipe, and apparently brought to the head. That is
the best I can relay this person's observation.
MR. LOWE: Was this a native American that said this?
MR. HANSON: I would just as soon not go any farther than
a member of the audience.
MR. TAIKEFF: I would like to observe that the witnesses
don't look in the direction of the defense table. I am at least 90
percent
of the time focusing my attention on the witness who is testifying, and
they don't look that way. They look either at the prosecutor, or they
turn
to the jury and give their answer that way. I was just going to say
that
I see nothing happening at the table that could possibly be any kind of
a signal, but I think the important part of it is the fact that the
witnesses
aren't looking that way at all, with almost no exceptions to that
{1092}
fact.
THE COURT: There is no way that the witnesses can be
monitored
as to where they are looking.
MR. TAIKEFF: I am telling you Honor what I have actually
observed.
THE COURT: I appreciate that, but I can appreciate the
fact that the Defendant may want the pipe on the table and may want it
uncovered. I am simply asking that if the pipe is on the table and if
the
pipe is uncovered, that it be placed in such a position that there is
no
maneuvering the pipe or feathers in relation to the pipe or anything
else
in relation to the pipe. That's all I am asking.
MR. TAIKEFF: That's understood, your Honor.
THE COURT: I will ask Mr. Peltier, do you understand that?
DEFENDANT PELTIER: Yeah, I still don't understand what
is going on here.
THE COURT: Well, I fully explained it. If you have any
questions, you are certainly free to ask them.
DEFENDANT PELTIER: I haven't given anybody any signal.
THE COURT: As I mentioned, Mr. Peltier, I am not passing
judgment. The suggestion has been made by someone who claims to have
been
observing it for a day or two and {1093} because of what I did observe
in the courtroom this morning, to insure that these witnesses give
testimony
uninfluenced to the maximum extent that it can be accomplished and
without
in any way depriving you of the right to have this symbol on your table
and have it in front of you and have it uncovered, I am just simply
asking
that it remain in that position and that it not be moved by you, and
that
any feathers or other objects in relation to it not be manipulated; and
as I say, I am not attempting to ascertain if there is any basis for it
at all. I do not feel that I should have to do that. I do not want to
do
that.
I thank you for coming in.
(Whereupon, at 1:29 o'clock, p.m., the proceedings in chambers
were concluded.)
{1094}
(Whereupon, the following proceedings were had in the courtroom
without the hearing and presence of the jury:)
MR. LOWE: While we're taking care of the proceedings, would
it be all right for the witness to look at this, save a little time
possibly?
THE COURT: Yes.
The jury may be brought in.
(Whereupon, the following proceedings were had in the courtroom
in the hearing and presence of the jury:)
MR. LOWE: Ready to proceed, Your Honor.
THE COURT: You may proceed.
Q (By Mr. Lowe) Mr. Draper, as we were breaking for lunch
you were examining Defendant's Exhibit, I believe, 90, a seven page
document
which I showed to you and I'll ask you, first of all, the second
through
the seventh page, that is, the six pages that are attached behind the
cover
sheet, are those a favorable reproduction of the statement you made to
Agents Dolle and Stapleton in Gallup, New Mexico?
A Yes.
Q That first page, was that covering sheet made by Special
Agents Doyle and Stapelton?
A Yes.
Q And in the covering sheet there is a recitation by the
agents that they advised you of your rights and told you what the
purpose
of the interview was and a few other things. Did {1095} you read them?
A Yes.
Q Do you see anywhere in that form 302 that is before you any
recordation by the agents of the fact that they made threats or
promises
to you, that is, did they threaten you would be indicted if you did not
cooperate?
A Yes.
Q You don't see that anywhere in there, do you?
A No.
Q Do you see anywhere in there that they promised you if
you cooperated you would have a new life, new job, education, financial
assistance, do you see anything like that?
A No.
Q I did not cover this, I skipped over briefly when you
said you had gotten back to Chinle. Let me cover this while we're here.
Up until the time of this event, had you been a student or had you been
employed or unemployed or what was your status up until June 26th,
1975?
A I was self-employed.
Q Self-employed?
A Yes.
Q How were you employed?
A I was arts and crafts, silversmith and painter.
Q And between June 26th and the date that you were
interviewed
which I believe was January 19, 1976, about six months or seven {1096}
months later, what were you doing during that period for employment or
school if anything?
A I wasn't going to school. I wasn't working.
Q After you were taken away from Gallup, I believe you
said you were taken to Rapid City at some point, in South Dakota, is
that
correct?
A Yes.
Q Did you also go to Sioux Falls, South Dakota?
A Yes.
Q Did you appear before a grand jury and testify under
oath on one or both of those occasions?
A Yes.
Q Was it on one of them or on both of them?
A One of them.
Q Which one was it?
A Sioux Falls.
Q Between the time you were arrested and the time that
you testified in the grand jury, you've identified talking on one
occasion
to Special Agent Stapelton and Special Agent Doyle of the FBI. I'll ask
you, were there any other FBI agents you talked with during that period
of time?
A No.
Q Specifically let me ask you: did you talk with
Special Agent Adams during that time?
A Yes.
{1097}
Q And I'll ask you if you can recall, first of all, Special
Agent Stapelton and anyone he might have been along with when you
talked
with him? Can you tell the jury about how many hours you spent talking
and being interviewed by Special Agent Stapelton?
A About three hours.
Q If I were to suggest to you that on an earlier occasion
under oath you indicated eight to nine hours, would that sound
reasonable?
Would that refresh you recollection?
A Yes.
Q Eight to nine hours sounds about right?
A Yes.
Q And about how many hours in addition to that did you
spend being interviewed by Special Agent Adams, if you recall?
A About two.
Q If I suggested to you that on the earlier occasion when
you testified under oath you said four or five hours, would that
refresh
your recollection?
A Yes.
Q So then between the time you were arrested and the time
you appeared at the grand jury, you spent somewhere between 12 and 14
hours
being talked to and interviewed by FBI agents, isn't that correct?
A Yes.
Q Now how about members of the United States Attorney's
{1098} staff, were you ever interviewed by them prior to going before
the
grand jury?
A Yes.
Q Can you tell the jury who you were interviewed by?
A By Robert Sikma.
Q Is that the same Robert Sikma sitting at Counsel table
on the left end?
A Yes.
Q About how many hours did you spend being interviewed
by Mr. Sikma?
A About two, three.
Q On how many different occasions did you talk with him?
A At a grand jury in Sioux Falls and Cedar Rapids, Iowa
there at the trial.
Q And all told how many hours would you say you have been
interviewed
by Mr. Sikma or talked with him?
A About six, seven.
Q If I suggested that last summer under oath you testified
that you met with him about five times for about eight hours, would
that
refresh you recollection?
A Yes.
Q Now during the early part of last year prior to any sworn
testimony you may have given in any proceeding during interviews with
Mr.
Sikma, did he give you a transcript of your grand jury testimony for
you
to review and read over?
{1099}
A Yes.
Q Did he give you 302s that had been written by FBI agents
about their interview with you for you to read over?
A Yes.
Q Would I be correct in suggesting that there were three
or four such 302s?
A Yes.
Q Now at the time you gave testimony before a grand jury
and at some times thereafter you have made some specific references to
weapons that have been shown to you in this courtroom by their titles,
their specific designations and I ask you during the time you were in
the
Jumping Bull area, how many of the various weapons were there you know
to call by name or caliber or manufacturer, if you recall?
A There was about eight, something like that.
Q Okay. Let me clarify. Of all the various weapons that
you had seen at Jumping Bull's, how many did you identify yourself when
you were in Jumping Bull's before this incident took place or at the
time
it was taking place, how many different ones did you recognize by name?
A Just about two or three of them.
Q And did you remember which ones those were that you
identified
by name or by caliber?
A There was a .30.30 and a 22 and a shotgun.
Q Now since that time you have on various occasions
identified
{1100} other of those weapons that were in the Jumping Bull Area by
specific
names or calibers or manufacturers, have you not?
A No.
Q You have not in testimony at various times?
A Yeah. The agent told me what type of guns they are but
I don't know what type they were.
Q Are the agents the only ones who told you what type of
guns they were?
A Yes.
Q I'll ask you --
MR. HULTMAN: May we approach the bench, Your Honor.
(Whereupon, the following proceedings were had at the bench:)
MR. HULTMAN: Your Honor, I think in this trial record it's
very clear on direct examination that this individual has identified no
more than three guns as per his responses just now by any type of name.
I made it very clear on my questioning on direct examination that he
was
not to in any way refer to names of objects he has learned since. Now I
object at this point. This is an attempt on the part of Counsel, as he
did in the last trial, Your Honor, specifically to try and show to the
jury that this young man now knows at a later time that a certain
weapon,
an AR 16 or 15, for example, is an AR 15 or 16. And then by that to
insinuate
to the jury that there is something sinister or the {1101} government
has
in some way done something that is in a bad light and it is the reason
for this that I object now to going into anything of that particular
kind
because it's only for that purpose.
MR. LOWE: The purpose of the testimony is to show as this
witness has previously testified under oath that he was coached, that
he
was given information that he did not himself have prior to his going
before
the grand jury and before going to trial last summer that it was not
disclosed
except on probing on cross-examination in the trial. And in the event
of
the grand jury, of course, there is no Counsel there so it was never
disclosed
to the grand jury. This information he was testifying about was not his
own but had been given to him by Mr. Sikma and the FBI. I think this is
quite relevant to have the jury judge the candor, the honesty and lack
of bias of this witness. If this witness has been coached repeatedly by
the government in ways which plant the fact in his mind as we believe
the
evidence shows and as he has testified under oath before, then that is
quite relevant for the jury to know and quite proper for us to show, to
show the bias of the witness and to cast doubt on his credibility. That
is in sworn testimony of the transcript, Your Honor. This is what I'm
referring
to an I refresh his recollection here.
MR. HULTMAN: Your Honor, if I might speak one more time.
This is an attempt, as I say, on the part of Counsel. I {1102} would
ask
him at this time, the testimony in this record at this time to date,
one
item that makes the category he's now probing on as far as this record
is concerned in any way. That is purely an attempt on Counsel, against
Counsel, that is exactly what it was last time and I submit it is
again.
MR. LOWE: I don't understand what the question is. The
record is complete --
MR. HULTMAN: What?
MR. LOWE: -- with Mr. Draper saying Mr. Sikma told him
what the AR 15 was, for example, and said other FBI agents told him
other
weapons --
MR. HULTMAN: Tell me what the showing is, John, other than
in this trial he knows what an object of this kind looks like. There
was
nothing to do whether it is or isn't an AR 15 and I made that very
clear
on direct examination.
MR. LOWE: Well, number one, he has already made a reference
to a 308 or --
MR. HULTMAN: 308 or 303.
MR. LOWE: Both of those weapons, and didn't know either
one of them. Somebody put that information there and whether or not the
government, they had their fingers burned last summer, knows that,
enough
not to ask him these questions, it doesn't matter. The point is that he
has been coached and coached and coached. He has been 14 to 16 hours
with
FBI agents and eight hours with Counsel and in this his sworn testimony
he {1103} has said he was given this information by those people that
he
did not himself have. That is quite relevant for this jury to know in
order
to judge whether Mr. Draper is testifying about what he knows about or
what somebody else was told him.
MR. SIKMA: Your Honor, I would say --
MR. HULTMAN: I would ask Counsel be given an opportunity
because it is a --
MR. SIKMA: Counsel is attacking my integrity. I have never
advised this witness what any of those weapons are. I was surprised at
this witness' ability to recognize certain weapons and to point out
certain
items on the weapons. I have never advised this witness as to what
various
weapons were in my interviews. It is for some reason or another, had
this
knowledge beforehand and only upon, I would say, the coaching of
Counsel
in this respect has he ever come up with those kind of statements.
THE COURT: Well --
MR. SIKMA: I think it's --
MR. LOWE: I'll get the transcript and let you see where
Mr. Draper -- I'm merely going on what Mr. Draper said.
THE COURT: I don't know, it's -- just a moment. I don't
know it's necessary to go into this. I do observe, however, that, and
I'm
not sure you have a valid objection at this point. I do observe,
however,
that Mr. Lowe is doing exactly what you objected to.
{1104}
MR. HULTMAN: Ask me not to do.
THE COURT: Asked you not to do.
The witness answered two or three hours, then you go and say,
"Would it refresh your recollection if I told you that you testified
under
oath you went six or seven hours." This is exactly what you people
complained
about the other side.
MR. LOWE: Judge, I'm on cross-examination. There is a world
of difference between reinforcing your witness and being able to
cross-examine.
THE COURT: It's still not the proper way to cross-examine.
The proper way to cross-examine on the basis of a statement is to show
him the statement.
MR. LOWE: I'd be happy to do that. I've never had that
done before, Judge. I'd be happy to do it.
My understanding was that's when it was his witness. I'll be
happy to do it thataway.
THE COURT: Or the very least to specifically read that
statement, the lines and page. I don't know, I think I would have to
agree
with you that on cross-examination it is not necessary for you to
actually
take it and show it to him because you do have a little different legal
situation, but you should read the statement.
MR. LOWE: I'd be happy to.
THE COURT: Line and page.
{1105}
MR. LOWE: We'll do it.
THE COURT: But insofar as your objection is concerned,
I think it's entirely proper cross-examination. If you can show it in a
legitimate manner there has been something, some pressure or some
reason
why the witness may have testified as he did on direct.
MR. HULTMAN: All right, Your Honor.
Your Honor, then I continue to object because I don't want to,
could I have a continuing objection and would the Court then --
MR. LOWE: It's understood.
MR. HULTMAN: On the agreement of Counsel if it reaches
the point where it would be repetitious or beyond the bounds that the
Court
would then so intercede. I don't want to, I want a standing objection
but
I don't want to interfere with Counsel, Your Honor.
THE COURT: Very well.
(Whereupon, the following proceedings were had in the courtroom
in the hearing and presence of the jury:)
MR. LOWE: Would you read back the last question, please.
(Whereupon, the following questions and answer were read
back:
Are the agents the only ones who told you what types of guns they were?
Answer: Yes. Question: I'll ask you --)
{1106}
MR. LOWE: Can I just have a moment, Your Honor?
THE COURT: You May.
MR. LOWE: Let me strike that last question.
Q (By Mr. Lowe) Mr. Draper, you said that you knew two
or three of the weapons in the Jumping Bull area. Isn't it a fact that
all the other names of weapons were given to you by the FBI or Mr.
Sikma?
A That's right.
Q When you were being interviewed by the FBI agents after
your arrest prior to the time you testified in the Grand Jury, did they
show you a lot of pictures to see if you could identify various people?
A Yes.
Q Was one of the people living in the Jumping Bull area
during this general period of time before this incident Dennis Banks?
A Yes.
Q And his family?
A Yes.
Q He was, was he there on that particular day?
A No.
Q And did either FBI agents or Government attorneys trying
to ask you questions which were aimed at determining whether Mr. Banks
was involved in this incident in any way?
MR. HULTMAN: Now, Your Honor, I'm going to object {1107}
because of the generalness of the question. At this point we're talking
about since the beginning of time, and I have no objection to counsel,
if he wants to ask specific questions with reference to who did what,
when,
for example the FBI, and I have no objection to that question.
On the other hand if he wants to ask questions about counsel,
then as to times and places this individual indicated times and places
as to when counsel for one side or both sides may have, again I'll have
no objection. But I'm going to continue to object if we're going to
lump
counsel and the FBI and all times and places into a general question of
this kind. And that's the basis for my objection at this time and for
this
point forward, Your Honor, rather than me making it again. I'll just
enter
the general objection at this time.
THE COURT: Well, I fail to see the relevancy of the last
question.
MR. LOWE: The relevancy will be clear very shortly, Your
Honor, through a series of questions about that.
In response to Mr. Hultman, I can certainly ask a general
question
and then if I get a positive response I can then narrow it down more
specifically.
But it there's an awful lot of time instead of naming sixty-five FBI
agents
one at a time. To say did any FBI agents or any Government counsel ask
this, and then if I get a positive response I'll try and pin it down
and/or
Mr. Hultman can on redirect. I don't think {1108} it's anything
improper
about the question.
The witness has not indicated that he doesn't understand or he
can't answer it.
THE COURT: Except as I mentioned I do not see the
relevancy.
MR. LOWE: Does the Court want me to state the relevancy?
MR. HULTMAN: If it please the Court, in the presence of
the jury I think, Counsel, I would object further because this is an
attempt
to get before the jury matters that are not relevant.
MR. LOWE: Mr. Hultman, wasn't going to say I was going
to offer it to the jury. I will come to the sidebar if the Judge wants
me to tell it.
THE COURT: You may.
(Whereupon, the following proceedings were had at the bench:)
MR. LOWE: Your Honor,
Leonard Peltier is a leadership person in the American Indian Movement
and we will have testimony to back that up. I don't even think the
Government
would deny that. There was at least one occasion, maybe more than one
occasion,
in which there was interrogation of Mr. Draper by FBI agents, perhaps
by
Government counsel, I'm not clear I'll have to say, which there was a
concerted
effort to list and identify virtually all of the national American
{1109}
Indian Movement leadership personnel in an attempt to sweep them into
this
incident in some way, or to determine whether they were involved.
Dennis Banks is simply the first of a list of them. This came
out in a previous trial proceeding. It is the theory of the defense
that
the reason that Leonard Peltier was singled out in this is that part of
an ongoing campaign to discredit and to remove him from any kind of
activity
of members of the American Indian Movement we believe, or the
leadership.
We believe that showing that there was great attempt made to
involve other leadership members of the American Indian Movement is
part
and parcel and will dovetail with the testimony that the defense will
put
on indicating that that is part of a motivation of the Government in
trying
to convict Mr. Peltier.
And Mr. Draper will so testify that they asked him about all
of these various AIM members, including people who apparently had never
been to Jumping Bulls'.
MR. HULTMAN: First of all, on the record, Your Honor, I
take personal offense to the last comment that this is an attempt on
the
part of the Government, this trial and the proceedings. These
proceedings
have taken place according to law through grand juries, through
investigations,
through indictments, and I take personal affront to the last comment
{1110}
of counsel to his statement that we have, to-wit, in some way with this
particular defendant a cause of some kind. That's the first comment.
Now in response to the general issue. This is part of the reason
for the Motion in Limine, Your Honor, and now I will enter my objection
of relevancy from this point on to the matters here. There is a lawful
basis for asking any question about Dennis Banks with relationship to
the
factual issue involved because he had to live, as the testimony says,
in
one of the three houses. Now, I don't know much of a better reason, in
fact it would be negligence on the part at best of any investigator or
any agency of the Government having anything to do with this case, not
to at least find out something of what the whereabouts of one of the
persons
who lived in one of the three houses on the day concerned.
So I'm saying beyond that, and to the part that he specifically
played or did not play, and the record of the last trial will clearly
show
he had nothing to do in any way, wasn't even in the area that
particular
day, and it's for the sole reason that counsel wants to bring in an
issue
which is not relevant. And that's now the basis for my objection.
THE COURT: The issue before the Court, as I perceive it,
is whether or not this defendant either killed or aided and abetted in
the killing of the two persons named in Count 1 {1111} and Count 2 of
the
indictment. This individual has testified with reference on direct,
with
reference to the whereabouts of the defendant and to his observations
as
to what went on and as to his personal participation in that. Now,
that's
all, and what happened after the event.
Now, what Dennis Banks has to do with the factual inquiry on
that issue is beyond me. And I sustain the objection on the grounds of
relevancy.
It may be something that you can bring up on defense if you can
show what relevancy, but certainly not relevant to the
cross-examination
of this witness at this time based on his direct testimony.
MR. LOWE: May I say two things for the record?
THE COURT: You may.
MR. LOWE: First, Mr. Hultman should address his personal
affront, his personal offense, to Mr. Peltier. I trust that he
understands
that counsel is announcing defense positions or strategies does not
necessarily
state counsel's personal views, but rather the views of the defendant.
MR. HULTMAN: I accepted it as that.
THE COURT: And I might state, if I might interrupt you,
that I pretty much ignore these interchanges between counsel when they
get to that basis.
MR. LOWE: Secondly, Your Honor, we believe that there will
be a very substantial issue. I think it's already pre-{1112}sented
itself,
and it will be enlarged substantially during this trial as to tampering
with evidence and with witnesses of threats to witnesses and of
coercion,
of impropriety of the mental misconduct.
Now, whether the Court or the prosecutors believe that that is
raised to the level of a factual issue or proven or not, is not the
point.
The point is that it will be a fact issue for the jury. One of the
things
that is proper to show in relationship to that which goes, of course,
to
the credibility of all the witnesses of the Government is motive. And
if
the jury sees no possible motive for the Government falsifying, and
when
I say the Government, or any of its agents, I don't mean Government
counsel
certainly necessarily, but if there is no motive whatsoever it is less
likely that the jury will perceive that that has been going on.
We believe that it is proper for us to show a motive from trying
to falsify evidence against Mr. Peltier if that's what the evidence
does
show. And that's of course what Mr. Peltier believes it shows by
showing
there was a conscious effort to interrupt and undermine the leadership
of the American Indian Movement because the falsification would be
consistent
with that goal.
That is the reason that I would proffer from all of this
testimony.
I want the record to be clear on that so that {1113} if you make that
ruling
you do so with the understanding or proving it would be.
THE COURT: The ruling of the Court is that that evidence
is not proper under cross-examination of this witness at this time.
MR. LOWE: All right, sir.
May I make just an offer of proof on the record?
THE COURT: You may.
MR. LOWE: In a previous trial, first of all, may I ask
a point of inquiry? The transcript of the previous trial was ordered
prepared
by the Court. Is that transcript lodged with the Court in any way so
that
we can refer to it without actually introducing parts of it, again; or
is it not, because that will simply my inquiry.
THE COURT: There is no transcript of the previous trial
to my knowledge. I authorized the preparation of the transcript so
counsel
for the defense could have copies of anything which the Government
ordered.
To my knowledge that's all the transcripts that have been prepared.
MR. LOWE: I just wanted to be sure so I didn't refer to
it and think it was part of the record.
THE COURT: No, it has not been made a part of the record
in this case, and I have no intention of making it a part of the
record.
MR. LOWE: My offer of proof is that Mr. Draper would {1114}
testify, if allowed by the Court, that he was asked about many of the
national
AIM leadership personnel, such as Dennis Banks, Russel Means, Clyde
Belcourt,
Vernon Belcourt, Stanley Holder, Carter Camp, and that Mr. Draper
understood
these to be American Indian Movement personnel leadership at the time
it
was asked. And we would proffer that as the type of evidence we will
submit
in further showing of what I have represented to the Court. Thank you.
THE COURT: Very well.
(Whereupon, the following proceedings were had in the courtroom
in the hearing and present of the jury:)
Q (By Mr. Lowe) Prior to the time you were arrested in
Arizona by Special Agent Stapleton had you been involved in conduct
which
resulted in your being charged with criminal offenses in one or more
jurisdiction?
A Yes.
Q Would you state what jurisdictions and what the charges
were.
A In Phoenix I was charged with strong arm robbery.
Q Anything else?
A No, that's it.
Q How about at the time you were arrested?
A Only the alcohol charge.
Q Okay. And I will ask you whether it has been some time
since your arrest, perhaps since your grand jury, whether you {1115}
had
in your mind that these charges would be taken care of for you as part
of your cooperation in this case?
A Yes.
Q In fact you have not been convicted in either of those
cases, have you?
A No.
QQ And in fact they are not pending against you either, are they?
A No.
{1116}
Q Now, you have described, told rather, that there was
some 12 to 14 hourse that you were interviewed by FBI Agents and about
eight hours by Mr. Sikma; and let me ask you this: Would it be
fair
to say that every time you go over the facts again with someone, you
are
able to remember the facts clearer when you talk about it the next time
because you have been over them again?
A Yes.
Q In fact, each time you go over it again with an FBI Agent
or the United States Attorney, you are able to remember the details in
much more detail, aren't you?
A Yes.
Q Would it be reasonable to suggest that it is possible
during these interviews every time you go over it again and again, that
sometimes you might pick up a little detail here and there that you
heard
from one of the Agents and you might possibly remember that in a later
interview?
A Yes.
Q So it is possible as to some of the things you have told
us here that you are referring to something that some agent may have
told
you happened rather than what you actually saw or heard yourself, is
that
possible?
A Yes, that's possible.
(Counsel confer.)
Q (By Mr. Lowe) Now, going back to the time prior to the
{1117} incident on June 26th, 1975, I will ask you if the people who
were
present in Jumping Bull compound or in that general area, didn't
include
a person named Jean Day?
A No.
Q Let me suggest this to you: Were one of the people
in there a girl named Jean from Wisconsin?
A Yes.
Q If I suggested her name was Jean Day, would that refresh
your recollection, does that sound right?
A Never heard her last name.
Q All right. What was her relationship to any other people
in the camp, if anything?
A Well, she was a good friend of ours and a good friend
of everybody.
Q I didn't hear what you said first. I am sorry.
A She was a good friend of us, and she was a good friend
of everybody around the Jumping Bull area.
Q Was she somebody's girlfriend in particular?
A Yes.
Q Was that Leonard Peltier?
A Yes.
Q Do you remember during the time prior to this incident
on any occasion meeting or seeing a woman in the Jumping Bull Area
named
Anna Mae Aquash?
A Yes.
{1118}
Q Did you ever see a woman, or did you ever know a woman
during that time named Myrtle Poor Bear?
A No.
Q On June 26th, 1975, the date of this incident, do you
know whether there was a person named Myrtle Poor Bear in the camp
area?
A No.
Q Perhaps my question was not phrased as well as it could
have been. Because you said "no", I am not clear. You mean that you
don't
know or that there was no such person, will you just state?
A No. I didn't see no person. I didn't know Myrtle Poor
Bear until I got to Sioux Falls. A picture was given to me of Myrtle
Poor
Bear.
Q Did you know who it was?
A No.
Q Had you ever seen her at the camp?
A No.
Q And when I say "the camp", I mean the Jumping Bull area?
A I might have seen her, but I don't remember. I can't
place her.
Q If she had been Leonard Peltier's girlfriend --
MR. HULTMAN: (Interrupting) Now, if it please the Court,
I am now going to object. This question has been asked and answered
four
times. The foundation clearly {1119} shows that this witness doesn't
know
Myrtle Poor Bear.
MR. LOWE: Your Honor, he said he wouldn't remember. I am
just going to ask a foundation question whether he would remember if he
had seen her. That is proper cross
THE COURT: You may ask the question.
Q (By Mr. Lowe) If this person had been a girlfriend of
Leonard Peltier during the time you were living there, do you think you
would have known her?
A No.
Q You did know Jean Day there though?
A Yes.
Q And that was Leonard Peltier's girlfriend?
A Yes.
MR. HULTMAN: Now, I object, your Honor. That question has
been specifically asked and been answered. It is the exact question and
the exact answer, and I move that the last question, and response go
out
as repetitive.
THE COURT: It is cumulative.
MR. LOWE: Thank you, your Honor.
Q (By Mr. Lowe) During the time you lived in the Jumping
Bull area, were you aware of fear of confrontation or attacks from the
goons?
MR. HULTMAN: Your Honor, I have no objection except that
we are using a term at this particular point, and I would have no
objection
if counsel would ask the question {1120} of this witness of what the
word
means. If he would take it in that order, the government would have no
objection.
MR. LOWE: I have no objections to doing that, your Honor.
MR. HULTMAN: I have no objection if he does that, your
Honor.
MR. LOWE: Strike that last question. I will withdraw it.
Q (By Mr. Lowe) Did you ever hear the term "the goons"?
A Yes.
Q Do you know who the goons are?
A Yes.
Q Tell the jury who the goons are?
A The goons are, you could say, civilians or just regular
people who work for the police, and they do the dirty work for the BIA
police of Pine Ridge Reservation there, and they are all hired by Dick
Wilson.
Q How did the goons feel about AIM people back then?
A They feel harsh about AIM. They don't get along with
AIM.
Q Now, let me ask you, was there, among the people in the
Jumping Bull area, including the residences and the Tent City area, was
there a fear that there might be an attack from the goons?
A Yes, there was a fear, but they never came; and yes,
there was a fear among the people there.
{1121}
Q Did you feel that the place the goons were most likely
to attack was the Tent City where everybody had guns and where the
leaders
were staying?
A Yes.
Q Is that the reason why you moved out of the Tent City,
is that one of the reasons you were afraid to be down there instead of
up at the houses?
A Yes.
Q Would it be fair to say that you were afraid if you
didn't,
you would get caught in an attack and get caught in a gunfire down
there?
A Yes.
Q Would it be fair to say that there was an atmosphere
of fear around the Jumping Bull area there with relation to being
attacked?
A Yes, you could say.
Q On the day before this event you described an incident
in which you were confronted by two FBI Agents, Coler and Williams, and
some BIA officers in another car, I believe you said.
Now, I will ask you if you will state what happened when they
first pulled up next to you on Highway 18.
A They just told us to stop right there, and I think it
was Coler got out and talked to Norman or Mike, and they asked us if we
knew Jimmy Eagle, who Jimmy Eagle was, and we told him, "We don't know
Jimmy Eagle," but Coler wasn't too sure how {1122} Jimmy Eagle looked;
and they took down our names, and that was it, and when they found the
clip on Norman, they began to get leery of us, and then they took us to
the Pine Ridge.
Q Did they search you at any time?
A No.
Q Did they tell you that you had any choice on whether
you went into Pine Ridge or not?
A No.
Q Did they ask you or did they tell you, that is, did they
ask you or did they tell you to go with them? I should finish the
sentence.
A Well, they asked us.
(Counsel confer.)
Q (By Mr. Lowe) Now, when you got back from Pine Ridge
that evening -- you were talking quietly, and I am not sure I heard
what
you said -- but I understood you to say that when you told Leonard
Peltier
that the agents had taken you to Pine Ridge, he asked whether they had
given you a hard time or something to that effect, is that correct?
A Yes.
Q And you told him that they had not, is that correct?
A Yes, they didn't give us a hard time.
Q And then he said, "That's o.k. then," or something to
that effect?
A Yes.
{1123}
Q Now, the next morning, calling your attention to the
day of the incident, June 26th, 1975, you described in the late part of
the morning being in the Tent City when the shots were first heard; and
I want to back you up from that a little while, perhaps an hour, let's
say, take the hour before you heard the shots and ask you what were you
actually involved in doing at that time during the hour before the
shots?
A I was there in the tent area talking with the guys there.
Q Was everything calm?
A Yes.
Q Did anybody have any excitement or any thought that any
trouble was going to happen?
A No.
Q Were people preparing for lunch or anything like that?
A Yes, Everybody was just going about what they usually
do.
Q Was there anybody down there preparing for an ambush
of FBI Agents while you were there?
A No.
Q Did anybody even mention FBI Agents coming at that time?
A No.
Q Now, you say you were talking with the guys. Just tell
the jury who the guys were.
A I was talking with little Jimmy and Norman Charles, Mike
Anderson, Norman Brown.
Q How many people were there named Mike Anderson living
at {1124} the Jumping Bull's during this period of time?
A One.
Q And would you describe him, about how old was he?
A 16.
Q Do you know if you saw him yesterday in the witness room
while you were here in the courtroom -- the courthouse?
A Yes.
Q So is that the same Mike Anderson you are referring to?
A Yes.
Q And as I understand what you are telling us for about
an hour prior to the first shots being heard you were in a position of
talkig with Norman Charles and Mike Anderson, is that right?
MR. HULTMAN: I object to that as not being a correct
statement
of the record.
MR. LOWE: I think it is a correct statement and if it
isn't,
Mr. Draper can correct, me. That's why I am asking the question. May
the
witness answer?
THE COURT: The witness may answer.
A Yes, he was there about an hour before the shots started.
Q (By Mr. Lowe) Thank you.
Now, during this hour before the shots were fired, did you see
Leonard Peltier?
A No.
MR. LOWE: May I have a moment, your Honor, please?
THE COURT: Yes.
{1125}
Q (By Mr. Lowe) I refer to a statement you made under oath
last summer in another proceeding. I am referring to Page 1015,
counsel,
at Line 4; and I read you the following, interchange between you and an
attorney, to refresh your recollection, Mr. Draper.
Question: What I am asking is whether you told us yesterday
that both Bob and Leonard were there when you distributed the water?
Answer: Yes.
Question: Now how soon after you distributed the water
was there shooting?
Answer: About 30 minutes to 45 mimltes.
Now, based on hearing that, I will ask you whether that refreshes
your recollection as to whether you saw Leonard Peltier during the hour
before the shooting took place?
A No, I didn't see Leonard.
Q This doesn't refresh your recollection?
A No.
MR. HULTMAN: Did you, counsel, read the third line of that
page, the response on the third line? I mean, I think it would be
appropriate
if you did, the third line of the page to which you are referring, with
reference to the specific question.
MR. LOWE: There is a whole preceding section there I would
have to read into the record. There was certain {1126} conversation.
Let me finish, will you, Mr. Hultman?
There is a preceding dialogue about different people and where
they were and what elicited the conversation which I quoted was a
statement:
Bob was around. I didn't see Leonard around; and then on further
examination.
Mr. Draper stated that he had seen him 30, 45 minutes before the
shooting.
I mean, you are free to read any part of the transcript when
you have redirect, Mr. Hultman, I have no objection to that.
Q (By Mr. Lowe) Now, I believe you said that when you were
sitting there talking with Norman Charles and Mike Anderson, that you
first
heard three shots and then some more, am I correct about that?
A Yes.
Q Do I also recall that you said that some people started
running up towards the shots?
MR. HULTMAN: If it please your Honor, again I didn't have
time to interpose the objection; and I want to go back and interpose an
objection on the part of the last question, the last complete question;
and that is, I object, your Honor, on the grounds that that is not a
proper
statement again of the record. That's the reason that I make my
objection
as to who was in the presence of {1127} this witness at the time he
heard
the shots, the specific people.
MR. LOWE: Mr. Hultman has been listening to a different
witness than I have, your Honor. I will re-ask the question.
Q (By Mr. Lowe) Just immediately prior to your hearing
the shots, were you sitting and talking with Norman Charles and Mike
Anderson?
A No. I wasn't talking when I heard the shots.
Q Were they with you when you heard the shots?
A Yes. They were around, but I wasn't with them.
Q O.k. So when you and Norman Charles and Mike Anderson
were there in the tent area and you first heard the shots, I believe
you
said that you heard three shots first and then some more, am I correct?
A Yes.
MR. HULTMAN: Now, again I object, your Honor, for the same
reason that the statement that counsel is using is not a fair statement
of the record. The witness said they were around. He did not say he was
with them at that particular time, and "around" can be anywhere.
THE COURT: The witness said they were around, he was not
with them.
MR. LOWE: He said he wasn't talking with them. I will let
the jury remember what he said. I don't think {1128} there is any
question
about what he said.
THE COURT: All right. Then you should phrase the question
in the words of his answer.
Q (By Mr. Lowe) Let me ask you again, Mr. Draper, just
prior to hearing the shots was Norman Charles and Mike Anderson there
in
the tent area with you?
A No. they weren't with me, but they were around.
Q They were right around in the tent area?
MR. HULTMAN: Again I object.
MR. LOWE: I am on cross examination. I think Mr. Hultman
is trying to tell the witness what to say, and I strenuously object to
it.
THE COURT: Well, the objection is overruled. You may
answer.
A They was around, but I didn't see them when the shots
first rung out.
Q (By Mr. Lowe) But during the hour prior to the shots
you did see them down there?
A Yes, I saw them earlier.
Q And you saw them during the hour prior to the shots,
didn't you?
A Yes.
Q All right. Now, during the hour prior to the shots, when
you saw Mike Anderson, did he say anything to you about "Hey. I just
got
back from being up on the roof up at the other end {1129} of the
Jumping
Bull's"?
A No.
Q Did he look to you like he was excited, like he just
finished running a half mile?
A No.
Q Did he look like he was out of breath from having run
a half mile?
A I didn't see him when the shots first rang out.
Q But prior to that, when did you see him?
A Yes, a little after.
Q But before the shots you didn't see him at any time when
he was excited and out of breath, did you?
A No.
(Counsel confer.)
Q (By Mr. Lowe) Now, when you heard the first three shots,
not talking about any later, but the first three shots, did you say
that
some people started running towards Jumping Bull's?
A Not at that moment, but a little while after they started
running up there.
Q How long would you say, a minute or two?
A A minute. After that, Mike came back down, and then he
went back up again. Then later Dino came, and Bob came, and they ran
back
up there; but I didn't see the whole thing at the same time, but I was
walking to the camp, walking from them away from them.
{1130}
Q All right. Now, when the shots first rang out, and then
about a minute passed, you said, and some people ran up towards Jumping
Bull's, is that right, they ran up towards Jumping Bullls?
A Yes.
Q Was Mike Anderson one of those people?
A No. He came a little later.
MR. LOWE: O.k.
(counsel confer.)
{1131}
MR. LOWE: Could I have just a moment, Your Honor.
THE COURT: You May.
Q (By Mr. Lowe) Last evening we had an interview with you
across the hall, didn't we?
A Yes. And there was a court reporter present we arranged
for through the judge, wasn't there?
A Yes.
Q I'll read you a question and answer sequence you gave
last night and ask you if you --
MR. HULTMAN: If it please the Court, at this particular
time I would make a request that Counsel for the government be given an
opportunity to, one, see the document so I can be in a position in
order
to enter an objection at a proper time.
At a consent interview was given and I had no knowledge of
material
now that Counsel is alluding to and has no way in which to enter an
objection
of any kind.
MR. LOWE: I would certainly offer at this time two
things:
First of all, I'd be willing to give Mr. Hultman all of our interview
notes
if he'd be willing, to give us all the FBI interview notes.
MR. HULTMAN: If it please the Court, Your Honor, I'm
referring
to a transcript and not any notes. Counsel understood clearly what I
was
referring to.
{1132}
MR. LOWE: That's no different category.
MR. HULTMAN: It's all the difference in the world, Counsel,
and you know it.
MR. LOWE: No different category.
I think this is a matter of work product. The reason we asked
to have a court reporter present so there was no question about
impropriety
at the interview.
MR. HULTMAN: If there is no other copy, Your Honor, the
government would allow Counsel to proceed if I just be given an
opportunity
of the witness before he answers to enter an objection if the
government
has one, Your Honor.
THE COURT: Very well. Proceed.
Q (By Mr. Lowe) The question: "Norman Charles was
around, Mike Anderson was around at that time?"
Answer: --
MR. HULTMAN: Well, now object, Your Honor. Clearly because
there is no showing of any time as to whether we're talking about the
25th
of June --
MR. LOWE: That's exactly --
MR. HULTMAN: -- 26th of June or today, last night in this
courtroom.
MR. LOWE: Mr. Hultman, let me finish. I'll back up one
question so I can give the time, Your Honor.
Q (By Mr. Lowe) Backing up one line, one question:
"Well, either tell me when you woke up or how many hours you were up by
the time you first heard the shooting." Answer from Mr. Wilford Draper
Draper: "I woke up at about 8:00 o'clock, something like that."
Question:
"Would you say it was about four hours later when the shooting
started?"
Answer: "Something like that." Question: "Now Norman
Charles
was around, Mike Anderson was around at that time?" Answer:
"Yes."
Question "What happened then once you became aware of the shooting that
was going on?"
MR. HULTMAN: Now, Your Honor, I do enter the objection
clearly. This witness has clearly testified in response to Counsel a
few
minutes ago exactly the same as he did evidently in that interview.
He's
used almost the same word, "Around." Now Counsel is attempting again to
put people at specific times and places to which this witness has now
answered
not only last night but again now in the courtroom at least twice and I
enter an objection at this time, Your Honor, that it's repetitious.
MR. LOWE: I accept Mr. Hultman's statement that that's
what the testimony was before. I withdraw the question in view of that
and the record will reflect that.
Q (By Mr. Lowe) Mr. Draper, when you saw Mike Anderson
returning up towards the Jumping Bull's, let me ask you first, did he
have
a weapon with him? This is after the shots now.
A Yes.
Q When did you next see him come back?
A Till the shooting stopped. It was quite awhile when I
saw {1134} him again.
Q Now when the shooting took place, I believe you said
you ran down into a ravine generally to the southeast of the tent area,
am I correct about that?
A Yes.
Q And did you stay there until -- let me ask you, how long
did you stay there?
A Until the shooting stopped.
Q Till the shooting had stopped. Then what did you do?
A Came walking back towards the camp.
Q Did you get through the tent area?
A Yes.
Q And was Mr. Peltier and other people already there?
A Yes.
Q During the time that the group was preparing for the
escape trip, did there come a time when the group stopped a prayed?
A I don't recall.
Q You don't know or you just don't recall?
A Don't know.
Q During this time, that is, during
the time you all were in the tent area after the shooting had stopped,
what can you tell us about the various weapons that Mr. Peltier had in
his possession from time to time? Did he only have one or change a lot
of weapons around or just what?
{1135}
A He had an AR 15 and, I don't recall the other.
Q Would it be fair for me to say he kept putting one weapon
down and picking one up and putting one down and picking one up and
just
handling a whole lot of different weapons?
A Yes.
Q Did you see or have any way of knowing what weapon he
had prior to your coming back up to the tent area?
A No.
Q Can you even say whether he had a handgun or rifle?
A Yeah. He had a rifle.
Q If you could see.
You didn't see it with him, did you, prior to your coming back
to the tent area?
A I couldn't see when I was coming back, but when I got
back to the camp he had one in his hand.
Q Do you know whether he had just picked that up a minute
or two before you had just come up to camp or whether he had it for an
hour?
A I don't know.
Q Possibly he might have picked it up just before you got
to the camp in preparation for loading, isn't that it?
A Yes.
Q Would it be fair to say you just have no way of knowing
what weapon he had prior to your coming back up to the tent area?
A Yes.
{1136}
Q Now you mentioned something and I didn't hear vou and
I would ask you to clarify for me. I thought you said there were 302
handguns,
or three or two handguns. Do you remember what you said about that?
A Yes.
Q What did you say?
A I saw three or two handguns there.
Q Three or two?
A Yes.
Q Do you have any way of knowing who had the handguns or
where they came from prior to your coming back from the tent?
A No.
Q Did different people handle those handguns at different
times?
A Yes.
Q And is that true during the time of the escape, the three
or four days that different people handled them at different times?
A Yes.
Q Is that also true for various rifles and shotguns and
so forth?
A Yes.
Q Is that also true and is that consistent with the
practice
with regard to weapons in the tent city prior to this incident, {1137}
that they were sort of community weapons?
A Yes.
Q And different people would use different weapons on
different
days?
A Yes.
Q I show you Government Exhibit 37A and I ask you if you
had ever seen that weapon in the camp area prior to the incident in
question?
A I've seen this.
Q It's a rather unusal weapon, is it?
A Yes.
Q Do you know what the name of the weapon is?
A Commando Mark III.
Q Was that red ribbon on it when you saw it in the tent
area?
A Yes.
Q Was the stock sawed off short the way it is there?
A Yes.
Q Was the white sawtoothed design on the butt?
A Yes.
Q Did you ever see any other weapon that looked like that
or is that a fairly unique weapon? I'm talking about now all these red
ribbons and white sawtooths?
A No. There's no weapon like that design.
Q Did you see that weapon when you were in the tent city
{1138} getting ready to go on the escape route?
A Yes. I've seen it around.
Q Who was carrying it if anybody during the escape?
A Dino Butler.
Q Did you see it with him during the three or four days
that you were escaping?
A I don't think so.
Q You don't think so.
I call your attention to an occasion last summer when you
testified
under oath. I'm referring to a transcript proceedings on page 921.
That's
the beginning point.
MR. HULTMAN: Your Honor, might we approach the bench,
please.
THE COURT: Yes.
(Whereupon, the following proceedings were had at the bench:)
MR. HULTMAN: Your Honor, this is, I'm going to object to
anything further in this area because this is an attempt on the part of
Counsel, at the last trial he did what he's now doing and then
specifically
told the witness that the weapon in front of him right now was a weapon
different from, the same style, make and so forth but different because
it had some red ribbons on it from the weapon that Dino Butler carried
out. Now Counsel told the witness this in the course of the trial and
that
witness now knows it. It is a fact, {1138} no question about it. He has
answered truthfully on the stand what is the fact and Counsel knows
better
than anybody as what are the facts and now I'm going to object because
it's clearly an attempt on the part of Counsel now to, after he
constructed
the witness last time to now turn around and try and use a tactic which
will attempt to get this witness to say something different than what
the
truth is and what Counsel knows the truth is and what he himself
brought
out the truth with this witness at the last trial. I'm going to object.
The questions have been asked, they have been honestly answered and
they
have been honestly answered pursuant to what this Counsel on
cross-examination
did with the witness last time. That's the reason I have asked to come
to the bar so that the Court would know the reason why Counsel for the
government is now going to object.
If we get into a trick of some kind here to now trying to trick
this witness into saying something, that he had a misapprehension about
before, he had an incorrection, that correction was pointed out by
Counsel
on cross-examination and now the witness knows what the true facts
really
are and I'm going to object for this reason.
It's an attempt on the part of Counsel now to confuse this
witness
as to a fact the witness now knows.
MR. LOWE: Well, to begin with, Mr. Hultman, grossly {1140}
misstates the record from last year. We had the transcript. I would
invite
Your Honor to look at it if you choose. I made no misleading statements
last summer. This witness testified --
MR. HULTMAN: I didn't say, John, you made a misleading
statement last summer. Didn't say that.
MR. LOWE: Let me -- I thought that's what you were talking
about.
MR. HULTMAM: Listen.
MR. LOWE: There was testimony on direct by this witness
identifying this weapon specifically. It was put in front of him as it
is now. He testified on cross-examination that Mr. Butler took this
weapon
with him on the escape march and saw this particular weapon, the one in
front of him then and in front of him now with the red streamer and
white
sawtooth. It's a unique weapon, no duplicates to that weapon. He
testified
virogously that over three or four days he saw Butler with it every
single
day. At the end of that having let him make his erroneous testimony on
the record, I pointed out with stipulation of government's counsel that
weapon was found by the FBI in the tent area on June 26th or 27th, I
don't
remember which it was, and in fact one of the FBI photo books has a
picture
of that weapon lying on the ground where the FBI found it. I told Mr.
Draper
that it was impossible for him to have seen that weapon for {1141} four
or five days and didn't that at least cause him to doubt his own
testimony
as to whether it was; he said "no."
I think it's perfectly proper for me to show that he has
testified
vigorously that he saw something that was impossible that he had seen
in
order to call it to the jury's attention the fact on at leastone
occasion
under sworn testimony this witness so testified in a matter that was
clearly
erroneus, either wilfully or just by mistake, so that the jury can use
that to gauge this witness' credibility. The recor1 is quite clear. The
manner in which I'm going about it is quite proper. I'm simply going to
read in his testimony from last summer. Your Honor can hear the
testimony.
It was clear and unambiguous. I think that's a proper way to impeach
this
witness as to his recollection.
MR. HULTMAN: Your Honor, the facts are as Counsel well
knows because the government, this information was given to Counsel and
it wasn't any surprise. The goverment, that there was another weapon
exactly
like this in shape, in everything, but for the fact whether or not
there
was any red ribbons around it. This witness has testified then,
testified
again this time that he saw the defendant with a weapon of this kind,
general
description. That's what the direct examination is.
In the last trial, as counsel has indicated, that was the
sequence
of events. There is no question that was the {1142} sequence of events.
Counsel told him at the end of that testimony that Mr. Draper, this
cannot
be the weapon for the reasons you have indicated here and so now this
witness
knows that fact and all I'm saying to Your Honor is that I don't want
Counsel,
I have no objection to him doing the things that he's indicated but I
do
not want him placinp this witness in a position where he now knows that
he was mistaken, to be placed in a position where Counse1 is eliciting
now that he's going to lie again when he knows it's a fact.
MR. LOWE: That's not the point. Your Honor knows that.
I'm trying to get him to acknowledge his testimony from last year. I
can
read it out of the transcript. I told him I'll read it to him.
MR. HULTMAN: Now I think it's improper cross, Your Honor,
for this reason: I think knowing what the record shows last time,
this witness, knowing, I think he has a right to be given the
opportunity
to explain or to purge the actual facts on the basis you now know them,
Counsel, and see how he knows them.
MR. LOWE: He has that opportunity.
THE COURT: What are you proposing now to ask him?
MR. LOWE: I'm proposing to read him his testimony from
last year in which he dug his heels in and absolutely insisted this
weapon
was with Butler, this particular weapon, not in general terms, this
weapon
with the red ribbon and white {1142} saw. He dug is heels in, Judge, in
ways you can hear when I read it, very specifically and did not change
that testimony even in the face of the fact that the government
stipulated
that it was impossible he was seeing this weapon along the escape route
because it was there, it was in the possession of the FBI. That goes
directly
to this witness' credibility.
MR. HULTMAN: Let me ask you one question, John: if
you do that, when you finish will you ask him one simple question and
t'nat
is do you know now that you were mistaken?
MR. LOWE: I'm willing to stipulate he knows now he was
mistaken. I'll ask him that, certainly. I don't mind that. I think it's
self-evident. I have no objection to doing that. I don't think I have
to
do it. That's all I want to do and that's --
THE COURT: Have you gentlemen resolved it?
MR. HULTMAN: I think we have. On the grounds it be the
same questions as last time.
MR. LOWE: I'm going to read it.
MR. HULTMAN: I don't want to have to come back and ask
him the question and object if I ask for a voir dire to clear up that
given
point.
MR. LOWE: I'm going to read him the testimony out of the
transcript.
MR. HULTMAN: You're going to ask him at the end, do {1144}
you now now you're mistaken as to that time?
MR. LOWE: Yes.
MR. HULTMAN: Will you ask him the auestion whether or not
he saw another weapon?
MR. LOWE: Let me make the record clear. I showed him, I
frankly thought he could confuse this weapon with another weapon that
was
not introduced by the government but was shown to us during the
discovery
phase last year.
MR. HULTMAN: That's right.
MR. LOWE: Which does not have the sawed of butt, does not
have a red ribbon, does not have a white sawtooth. In order to be fair
to the witness, I showed him a picture we had taken or that weapon
during
discovery and he denied it was that weapon and insisted it was this
weapon.
MR. HULTMAN: If you saw the picture, John, you and I both
would have to admit it would be impossible if I even really knew that
weapon.
MR. LOWE: It was a good glossy black and white close up
picture of the weapon. This witness is perfectly capable of testifying
for himself. He specifically said it was that weapon.
MR. HULTMAN: I'm willing to proceed.
THE COURT: Very well.
(Whereupon, the following proceedings were had in the courtroom
in the hearing and presence of the jury: )
{1145}
Q (By Mr. Lowe) I will read you a portion of the transcript
of previous proceedings where you testified under oath, Mr. Draper,
beginning
at page 921 to see if I can refresh your, either refresh your
recollection
or in order to lay the foundation for a question to you.
Beginning at line 22. "Dino Butler was carrying," and this is
talking about on the escape route, "Dino Butler was carrying a Comando
Mark 3 automatic rifle."
Turning over to page 928, continuing. "By Mr. Sikma:
Question:
I show you what is marked as Government Exhibit 37-A and ask you
whether
or not you can identify that document, Government Exhibit 37-A?
"Answer: It is a semiautomatic rifle weapon called a
Commando
Mark 3."
Then down at line 15, "After the shooting Dino Butler carried
it."
"Question: Where did he carry it?"
"Answer: To Bear Runner's."
"Question: How did you identify this particular firearm?"
"Answer: Sawed off stock and little carving right there."
All right. Now, on cross-examination, page 986, "Question:
By Mr. Lowe: I believe I am correct that Government Exhibit 37-A
you identified as being rather unique because of the {1146} sawed-off
butt
and the sawtooth emblem on the stock and the red ribbons as being -- "
MR. HULTMAN: And there, Your Honor, I enter an objection
because that I do not recall from the earlier statement by the witness
that there were any red ribbons in the testimony that he earlier read.
MR. LOWE: I don't understand this, Judge. I'm reading the
testimony sworn by this witness last summer. That's what I'm trying to
do, and it's what this witness said, and I'm, I'm aghast. I can't
answer.
MR. HULTMAN: Well, counsel, what I'm just trying to do,
would you go back to what you just got through reading as to what it
was
he testified to as to how he recognized the weapon, if there are any
red
ribbons there.
MR. LOWE: That's what I'm reading.
MR. HULTMAN: I'm not indidcating now, I'm asking you to
go back to the material that you just read a moment ago when he first
gave
his description. This is your description you are reading now.
MR. LOWE: And his response that it's, yes, it's correct,
and that's just evidence on direct examination.
MR. HULTMAN: Might we approach the bench, Your Honor?
THE COURT: You may.
(Whereupon, the following proceedings were had at the bench:)
{1147}
MR. LOWE: He was shown the weapon and in his presence while
he was looking at it.
MR. HULTMAN: Would you keep it down just a little bit.
MR. LOWE: Trying to find it here, page 928.
MR. HULTMAN: Okay.
MR. LOWE: I think the question you are referring to is
line 18.
MR. HULTMAN: Okay. Line 18, all right. The answer that
this man gave, Your Honor, which was the record in that trial was
"sawed-off
stock and the little --
THE COURT: Excuse me. What was the question?
MR. HULTMAN: The question was, "How did you identify the
particular weapon? This is page 928. The response was on the official
record,
"sawed-off stock and the little carve right there period," end of
response,
end of discussion concerning that particular identification.
MR. LOWE: Not true, not true. Just end of direct
discussion,
not cross-examination.
MR. HULTMAN: Wait, John, until I get done. Now, let is
go to the question which you asked him. Give me the page.
MR. LOWE: 986.
MR. HULTMAN: All right, all right. Now, this is, now this
is the question that counsel, and this is why I continually object,
Your
Honor, of misstatements of the record. {1148} And now here again is a
misstatement
of the record in the questlon by counsel. You just heard the
description
that had been given in the record. Now, counsel says, "Question:
I believe I am correct that Government Exhibit 37-A you identified as
being
rathher unique because of the sawed-offf butt and the sawtooth emblem
and
the red ribbons."
That is a misstatement of the record.
MR. LOWE: Am I correct in that answer-question? How is
that incorrect if he says that it's true?
THE COURT: The objcction is, as I understand it, apparently
it goes to the fact that Mr. Butler apparently did have a weapon,
similar
weapon on the trail.
MR. HULTMAN: That is correct, Your Honor.
MR. LOWE: There's no testimony of that, Judge, no testimony
whatsoever.
MR. HULTMAN: I'll voir dire right now and we'll establish
that fact; and there were not any red ribbons.
MR. LOWE: All I'm trying to do is read the record, Judge,
from last summer and that's what you told me I could do.
MR. HULTMAN: The record is misleading.
MR. LOWE: You can correct it on redirect if you think it's
misleading.
THE COURT: He's objecting to the fact that no mention was
made of the red ribbons until you mentioned it, until you {1149}
included
the red ribbon in your question.
MR. LOWE: But, Judge, the witness specifically in several
instances with the weapon in front of him said that that was part of
the
weapon that he identified. Now, that's the cross-examination, just as
proper
evidence, and it's just as of the record as direct is.
MR. HULTMAN: Your Honor, if I would have the opportunity
to interpose just one or two questions on voir dire I would then have
no
objection to any questions.
MR. LOWE: This is not a voir dire question, this is for
redirect. I'm doing proper cross-examination, I'm reading correctly
here.
If Mr. Hultman thinks I'm misreading this --
MR. HULTMAN: Not misreading, misstating the record.
MR. LOWE: I'm not misstating the record. How can I misstate
when I'm reading it.
THE COURT: The problem I think is it would have been an
objection at the time.
MR. HULTMAN: That is correct.
THE COURT: It would have been a sustainable objection at
the time it was made.
Now, counsel apparently included something into the question
which the witness had not previously testified to, and then the witness
gave an affirmative answer. I don't know how that can be corrected at
this
time.
{1150}
MR. LOWE: May I just offer some fact for you, Judge, I
that I think you did not, either didn't pick up when we were reading
because
Mr. Hultman had objected. But Mr. Hultman is overlooking the fact that
Mr. Sikma held up that very weapon, Exhibit 37-A and said, "Who had
this
weapon and where did you see it?"
And by George if I can't ask him qestions about that weapon that
he's held up in front of him and the red ribbon was on it, that makes
it
a completely different story, Judge, even accepting your postulation
that
it was acceptable. It was not, when he held up the weapon having the
red
ribbons on it.
Mr. Sikma is the one that asked him about the weapon. I didn't
raise that for the first time, and it had the red ribbons on it. And he
said that is the weapon.
MR. HULTMAN: All right. John, am I clear, you're going
to ask the same question?
MR. LOWE: I'm going to read him right out of the record.
MR. HULTMAN: And that's going to be the end of it?
MR. LOWE: I'm going to ask any proper questions.
THE COURT: Proceed.
(Whereupon, the following proceedings were had in the courtroom
in the hearing and presence of the jury:)
Q (By Mr. Lowe) Continuing, Mr. Draper, where I was a
moment
{1151} ago. Page 986 line 10, "Question: I believe I am correct
that
Government Exhibit 37-A you identified as being rather unique because
of
the sawed-off butt and the sawtooth emblem on the stock and the red
ribbons
as being the Commando Mark 3 which Dino Butler took away from the tent
area when you went to Bear Runner's. Am I correct in that?"
"Answer: Yes."
"Question: And you remember him carryingr that to Oscar
Bear Runner's and seeing it there also, don't you?"
"Answer: Right."
"Question: This is pretty unique, isn't it? There was no
other gun that had red ribbons on it and everything was there?"
"Answer: No." You don't deny that you gave that testimony
last summer, do you?
A No.
Q Do you now know that that testimony was factually in
error?
A Yes.
MR. LOWE: May I approach the witness, please, Your Honor.
THE COURT: You may.
Q (By Mr. Lowe) I show you Government Exhibit 55, page
12, picture C, one of the pictures taken by the FBI agents in the tent
city area on June 26th or 27th, and this is the picture {1152} here,
and
I ask you if you can state what object is prominently located in the
foreground
of that picture?
A Same gun as this one right here (indicating).
Q This one right here, isn't it?
A Yes. And when I finished with the testimony I just read
to you last summer I asked you, did I not, as to whether this picture
looked
like that gun?
A Yes, you did.
Q Page 987,
"Question: Now, I hand you Government Exhibit 5524." I
think the number may have been different last summer because it was
that
exhibit. "Ask if you will look at it and tell me whether that isn't a
picture
of the Commando Mark 3 which I just showed you if you can tell. Take
your
time and look at it. I don't know if you have seen that picture before
or not."
"Answer: This is the same gun."
"Question: That is the same gun. Now would it trouble you
any, Mr. Draper, if I told you that the Government has represented to
us
that this picture was taken by FBI Special Agent Mike Dyer who is from
Chicago on June 27, 1975 at the crime scene in the tent area as they
went
through and made a crime scene search, which is the day after you said
that Dino Butler carried from the tent area to Oscar Bear Runner's.
Would
that trouble you?"
{1152A}
"Answer: No."
"Question: It wouldn't. Could you explain to the jury how
this weapon that is on the board would have been in the tent area on
the
day after the shooting and could have been found there by an FBI agent
if Dino Butler carried it away and took it to Oscar Bear Runner's?"
"Answer: I saw him carry it to Bear Runner's."
"Question: So you stick by your guns even though the FBI
has a picture here that they took the next day in the tent area, and
you
say that is definitely the gun? You just stick by your guns, that you
are
positive that you saw Dino Butler carry it to Bear Runner's, and saw it
at Bear Runner's?"
"Answer: Right."
MR. HULTMAN: Could I ask counsel whether or not there is
a question to be asked?
MR. LOWE: I was just reading the last portion of this,
and I'm looking for a moment, if you don't mind for a moment.
Q (By Mr. Lowe) Do you remember that testimony, that
interchange
between us?
A Yes.
Q All right. Now, you described, Mr. Draper, a time on
the march after you had left the area when you and a number of the
others
were walking somewhere. I believe you said on the way to Noah
Wounded's.
Am I correct on that?
{1152B}
A Yes.
Q Was it dark?
A Yes.
Q Do you know precisely where everybody was at that time,
or just generally that you were all in a group?
A We were generally all in a group.
Q And you mentioned that something was said to the effect
about the car and shooting the agents, and I ask you now when you can
tell
first of all who the statement was made by without guessing. Did you
actually
know who made the statement?
A No. Could you recognize the voice or were you just
guessing
when you said it was Leonard Peltier?
A I was guessing.
Q And can you tell who the statement was made to or would
you just be guessing on that?
A Guessing.
Q Could you tell the full content of the words that you
heard spoken, or were you just taking what you remembered?
A I was just taking what I remembered.
MR. LOWE: Excuse me, Your Honor.
MR. TAIKEFF: May we have a moment to confer, Your Honor?
THE COURT: The court is in recess until 3:35.
{1153}
(Recess taken.)
THE COURT: The jury may be brought in.
(Whereupon, at 3:36 o'clock, p.m., the jury returned to the
courtroom;
and the following further proceedings were had:)
MR. TAIKEFF: May I approach with Mr. Hultman, your Honor?
THE COURT: You may.
(Whereupon, the following proceedings were had at the bench:)
MR. TAIKEFF: Your Honor, I had an FBI report marked
Defendant's
Exhibit 87 for identification. In looking at it just now I realized
that
I had stapled to the last page of that report a one page report which
is
not part of it; and I wanted to show this to Mr. Hultman and record
this
on the record so that there would be problem about it. He can ascertain
for himself that the last page of Defendant's Exhibit 87 is in fact not
the last page of the report in question, but an extra piece of paper
concerning
the same person that accidentally got attached.
MR. HULTMAN: O.k. let me take a look. (Examining.)
Elliot, let me ask you this --
MR. TAIKEFF: (Interrupting) It is an entirely different
date.
MR. HULTMAN: I am not trying to probe or anything.
{1154}
Do you want it to remain? Is there a reason that you want it
to remain as a part of it?
MR. TAIKEFF: No. I want to remove it. I didn't want to
do so without notifying you and the Court since it now has the official
status of having been marked.
MR. HULTMAN: Because it is another 302.
MR. TAIKEFF: It should not have been attached in the first
place.
MR. HULTMAN: My only question is this: As I recall,
it was shown to the witness, was it not?
MR. TAIKEFF: Only to ask him whether or not his report
of June 26th was incorporated in the 302 verbatim; and as you will see,
the page before is the end of that report.
MR. HULTMAN: O.k. Let me see just a second. I don't even
recognize what they have got here (examining).
THE COURT: That is Ecoffey?
MR. TAIKEFF: Yes, your Honor. In case you want to, we can
mark that last piece of paper 87-A for identification just in case you
ever want to know what piece of paper that was.
MR. HULTMLAN: If you represent to me, and I know you are
honestly and fairly representing to me, that it has no particular
significance,
accidentally it was attached?
MR. TAIKEFF: Yes.
{1155}
MR. HULTMAN: The Government would agree it would be
removed.
It is a separate -- this event doesn't have anything to do with it?
MR. TAIKEFF: That's correct, nothing at all. It is just
mechanically a mistake was made in stapling all of those pages
together.
MR. HULTMAN: I just noticed, looking at a page in a
transcript,
I had two pages the same and the next page was not there.
THE COURT: Why don't you just remove it?
MR. HULTMAN: Remove it now, yes.
MR. TAIKEFF: Exhibit 87 for identification now consists
of six pages, all of which are numbered except the first page, which is
dated 7-9-75.
MR. HULTMAN: Very good.
MR. TAIKEFF: Thank you, your Honor.
THE COURT: Very well.
(Whereupon, the following proceedings were had in the courtroom
in the presence and hearing of the jury:)
THE COURT: You may proceed.
Q (By Mr. Lowe) Mr. Draper, do you know what we mean when
we talk about immunity from prosecution?
A No.
Q All right. Let me ask you a series of questions then,
and I will try not to use that term.
{1156}
You testified that when you were first picked up and interviewed
by agents, that you had a fear of being prosecuted and you testified
that
the agents told you that they would indict you if you didn't cooperate.
Now, I want to shift the time to later when you were at the Grand
Jury or as to any other proceedings at which you testified under oath
since
then.
Now, I will ask you whether you continued to have concern that
you yourself would not actually be prosecuted for these murders, would
that be fair?
A Yes.
Q And would it be fair to say that you continued to be
worried that your own testimony might put you in a position of being
prosecuted,
would that be fair?
A Yes.
Q Did there come a time when the Government agreed not
to prosecute you if you would testify?
A Yes.
Q Were you given a promise that that wouldn't take place
as long as you testified?
A I don't know whether it was a promise or not, but they
said that you wouldn't be prosecuted, or you wouldn't be indicted if
you
testify.
Q And then did you testify?
A Yes.
{1157}
Q And you are testifying here today.
Do you now understand, as a result of having testified, that
the Government will keep its word and will not prosecute you or indict
you for these murders?
A Yes.
Q On January 13, 1976, at Sioux Falls, South Dakota, did
you appear before the Grand Jury?
A Yes.
Q Did you testify there under oath?
A Yes.
Q Would I be correct in saying that some of the testimony
you gave was false?
A Yes.
MR. LOWE: No further questions.
REDIRECT EXAMINATION
By MR. HULTMAN:
Q Mr. Draper, I just have two questions, one with reference
to the discussion concerning a weapon a few moments ago, is it fair for
me to conclude that you were honestly mistaken as to what your
testimony
was earlier?
MR. LOWE: Your Honor, that's so leading, I object.
THE COURT: Overruled.
A Yes.
Q (By Mr. Hultman) Do you know as a fact that there were
two weapons of this kind in the area?
{1158}
MR. LOWE: Objection, your Honor. There is no factual basis
for that. The witness has testified that this weapon was unique in all
the world, not two of a kind.
MR. HULTMAN: This counsel in the record pointed out in
the record at the last trial and again today that there was a second
weapon.
THE COURT: I am going to sustain the objection on the basis
that it is a leading question.
MR. LOWE: Thank you, your Honor.
MR. HULTMAN: I just have one further question.
Q (By Mr. Hultman) Have the answers which you have given
in this courtroom today, regardless of how far in time it may be from
the
event, how many people may have talked to you in between and including
at least two consenting interviews with the defense counsel where you
have
met with the defense counsel on two occasions?
A Yes.
Q Have you told the truth in the courtroom today as you
very best can remember the events at the time they took place?
A Yes.
MR. HULTMAN: I have no further questions.
RECROSS EXAMINATION
By MR. LOWE:
Q Mr. Draper, as to the question that Mr. Hultman, just
asked you about whether you have told the truth the best you can, is
{1159}
that true as to your cross examination answers as well as your direct
examination
answers?
A Yes.
MR. LOWE: No further questions.
THE COURT: You may step down.
(Witness excused.)