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.
A.ll 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.
A.ll 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.
A.nother 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.
A.nd 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.
A.nd 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.
A.nd 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.
A.nd 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.
Q.Q 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.
Q.uestion: What I am asking is whether you told us yesterday that both Bob and Leonard were there when you distributed the water?
A.nswer: Yes.
Q.uestion: Now how soon after you distributed the water was there shooting?
A.nswer: 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.
A.t 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?"
A.nswer: --
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."
A.ll 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?"
A.nd 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.)