The prosecution and trial of Leonard Peltier took place March-April, 1977 - a very unlucky time, when congressional sentiment was turning heavily against the Indians. In April 1976, Douglass Durham had appeared before senator James Eastland's Senate Subcommittee on Internal Security, damning AIM as a Communist-infiltrated organization involved in international terrorist activities, including gun-running between the U.S. and Canada. Durham took advantage of this august occasion to name Judge Alfred Nichol as a Communist dupe. Durham stated that at Wounded Knee the AIM people had hung a man from a cross and beaten him for six hours in full view of the U.S. marshals, adding plenteous imaginary detail. Scarcely a year after his talk of a "necessary social protest movement," Durham told the Committee that AIM was a "frankly revolutionary organization . . . . committed to violence . . . . and has Communist ties with Cuba, the Soviet Union, and China." These opinions were so agreeable to a professional flag-waver of Eastland's stripe that the Senator did not bother to solicit any others. Thus Durham's ideas formed the substance of the report. No one listened to Senator Birch Bayh (D, Indiana), who denounced his own committee for issuing a "totally unacceptable" report on the basis of "the unchallenged testimony of one solitary witness." Both hearing and report, Bayh said, "seem to have no other purpose than to discredit . . . . the American Indian Movement." Many believed them.
After a preliminary hearing in Sioux Falls on January 14, the trial was moved by Benson to his own home town of Fargo, North Dakota. Fargo, on the Minnesota line, has been steadfastly anti-Indian since the Sioux uprising in nearby New Ulm in 1862. As in Vancouver and Cedar Rapids, the FBI was furnishing the local police and media with an ample supply of unsubstantiated rumors about armed Indians descending on the town to interfere with the processes of justice and perhaps with the innocent townsmen in the bargain. The citizens were counseled to lock up everything that was not nailed down, their wives and daughters included. Inevitably the twelve white jurors were impressed by round-the-clock SWAT teams of big marshals, there to protect them from Peltier's blood-crazed associates. Carted from place to place in a bus with taped windows, the jurors were met each day by a SWAT team that would burst out and surround them before hurrying them inside, out of harm's way. In general, the Department of Justice avoided such obviously heavy-handed tactics as the Dog Soldier Teletypes, having learned to its cost in Cedar Rapids that the public from which the jury would be drawn was not so stupid as it had supposed.
Although the government still maintained that the presence of the AIM camp had nothing to do with with the agents' visits to the Jumping Bull land, it had decided to ease off on the "ambush theory," which was simply too lumpy for for a jury to swallow. Quite apart from the unlikely premise that the Indians had set up a shoot-out in their own front yard, with three pregnant women and a number of young children living in cabins within yards of of those "sophisticated bunkers" that turned out to be fallen root cellars and horse shelters, the ambush theory had been destroyed by two of its own witnesses (Draper and Brown) who established in passing that most of the "treacherous ambushers" were scarcely out of bed when the shooting started. For its part, the defense abandoned the equally improbable theory that there was no proof of a close-up execution, and perhaps the two agents had died in long-range fire by unknown assailants shooting from the vicinity of June Little's cabin. In fact, Elliot Taikeff, primary counsel for Peltier, abandoned the self-defense approach - which worked in Cedar Rapids - and acknowledged from the outset that first-degree murder had occurred. In retrospect, that may not have been the wisest course.
[Question: Was this really an entry from an American National "Why Awards" contest?] Mr. Taikeff, a New York lawyer who prided himself on precise use of language, seemed much more than a match for Evan Hultman. As prosecutor in Cedar Rapids, Bob Robideau said Hultman really helped our case. "It wasn't just that nobody could understand him, it was the way he spoke; you couldn't keep your attention on it. When he was done, you could hardly remember what he was talking about. When they put hin on again at Fargo we just couldn't believe it," said Robidueau. In between Cedar Rapids and Fargo, senior prosecutor Brigadier General Evan Hultman had flat done "got his act together!"
Hultman was much more effective at Fargo, avoiding behavior that made him seem foolish, while simultaneously making the most of a "folksy" manner that comforted these very conservative rural jurors - mostly Lutherans of Scandinavian ancestry, with long faces and a long ruminative memory of the nineteenth century massacres in Minnesota. In general, the jury seemed ignorant about Indians, or prejudiced, or both. In any case it was openly suspicious of "East Coast Jewish radical lawyers" and their "East Coast sarcasm," which the harsh-spoken, sharp-tongued Taikeff - cool and quick as a snake with witnesses - seemed to personify. John Lowe (assisting him) seemed less aggressive in this trial, apparently to avoid conflict with the domineering Taikeff, who often seemed less considerate of his associates than of the prosecutors and Judge Benson. In the opinion of the defense, prosecutor Hultman had both judge and jury squarely on his side. "At Fargo, they had it all under control," Bob Robideau says. "We knew they were going to get Leonard before that trial even started." His cousin Steve Robideau agrees. "The cold black spirit in that courtroom," he says, shaking his head. "I've been in many courts and I've never known anything like that; it was all the evil spirit behind that trial coming out. Even Judge Benson had to ask the marshals to do something about the heat - all the people were wearing blankets - but they couldn't get any warmth in there no matter what."
Judge Benson ruled right from the start that evidence would be almost entirely limited to the events of June 26, 1975 - that the suspect affidavits used in Canada, the historical background of Pine Ridge violence, the persecution of AIM by the FBI, the verdict at Cedar Rapids, together with any testimony from that trial - all were inadmissible as evidence in his court. The effect of these rulings became totally clear with the very first prosecution witness: the defense was forbidden to impeach Agent Gary Adams for glaring contradictions in his testimony at the two trials. At Cedar Rapids, Adams had confirmed his own report that a red pickup truck had fled the Jumping Bull land at 12:18. At Fargo he denied having made that report, asserting that the only departing vehicle he recalled was a pickup driven on and off the property by Wallace Little, Sr., an hour later. Despite its emphasis in the early period of the ResMurs investigation on the significance of the red pickup truck and/or red International Scout, the Department of Justice was now pretending that this vehicle was some sort of "phantom" conjured up by the defense to distract attention from the red-and-white Chevrolet van associated with Leonard Peltier, and Benson denied all defense efforts to enter the FBI's own radio transmissions into evidence. Reduced to discussing Adam's zeal in pursuing the Oglala suspects, attorney Taikeff found himself hobbled by the U.S. Attorney's objections, which Benson sustained throughout the trial. The cross-examination of this critical witness fizzled out in an ad hominem interrogation that may well have evoked sympathy for the huge agent, visibly moved by his own account of his friend's terrified last moments. (Matthiessen, ibid, p. 323.)
Russell Means left Fargo in disgust on the first day of the trial after a shouting match with Taikeff. It was over what Means perceived as his "sucking up" to the judge instead of going after Gery Adams hard enough. "You have to hit 'em! 'Aren't you the one who came in there without a warrant and gave that old man a heart attack by busting the door in?' 'Overruled' 'Sorry Judge!' - but keep on hitting 'em! I've had eleven trials, and we won ten of 'em by taking the offensive; the only one we played defensively put me in jail!"
"The only question is, did the defendant participate . . . . that's what this trial is about," Taikeff told the court. "The government doesn't have to prove first-degree murder, we concede first-degree murder." The concession was part of a defense effort to stipulate to the gory photographic evidence - permit it, that is, to go on the record uncontested rather than expose the jury to such material. But this tactic was hard-fought by assistant prosecutor Robert Sikma. Although in Cedar Rapids, Judge McManus had limited the number and display of the red and repetitious death-scene photographs, which might have unfairly prejudiced the jury, Judge Benson decided in favor of the prosecution on the grounds that that the relevance of this evidence outweighed the prejudice. Therefore, although the same pathologist who testified at Cedar Rapids agreed with the defense that a verbal description would suffice, the whole set of photographs was brandished before the jury over and over, to make sure that as much blood as possible was wrung from these awful exhibits. In addition, a second expert from Los Angeles (Dr. Thomas Noguchi) ran the jury through the whole raw business one more time. (Matthiessen, ibid, p. 324.)
Author Peter Matthiessen devotes pages 324-338 of his published masterwork to detailing coercion and manufacture of trial evidence through FBI artifice. These pages begin with the testimony of desperate and badly frightened young Mike Anderson, who had been arrested on February 1 by Gary Adams in Albuquerque and held in reserve for Peltier's trial. They continue until the United States rested its case against Leonard Peltier on April 6, 1977. Not only are these pages long and (almost excessively) detailed, but even reading them makes my gorge rise. [This material is almost as tasty as drinking a 55-gallon cocktail of Gulf water, Deepwater Horizon oil, and toxic COREXIT oil dispersant.] The author's documentation is extensive, explicit, and established beyond possibility of dispute through years of litigation costing the publisher over 2.5 Million dollars. I am not going to spend the time and space needed to reproduce all the text's details here.
When the prosecution rested its case, it became the defense's turn. Before presenting their first witness, some lengthy colloquies took place at the bench about the relevance of proposed testimony in regard to both Anna Mae Aquash and Myrtle Poor Bear. Defense attorney Taikeff quickly accepted the prosecution position that the Anna Mae Aquash episode was "irrelevant," a concession that upset all his colleagues. John Lowe and the others felt strongly that the fate of Anna Mae and the handling of her death, especially as it affected Myrtle Poor Bear, reflected the whole pattern of FBI misconduct on which the defense's case was based. This feeling was reinforced when, after considerable pressure from the defense (sustained for once by Judge Benson), Hultman finally agreed to reveal the identity of the two agents who had prepared the Poor Bear affidavits. Helping Paul Halprin (prosecuting attorney for the Canadian Department of Justice) they were: "Agent Woods [sic] and Agent Price."
Called to the witness stand, David Price recalled that he had first met Myrtle Poor Bear in 1974 in connection with a shooting in her home village; that he had seen her next in January or February 1976, at which time she had been removed from her home and placed in various motels for her own protection. "She was in a great deal of danger," said Agent Price, "due to the information she was furnishing us on another matter." This other matter - though Price now denies it - was apparently the Dick Marshall murder case. During the investigation of this matter, Poor Bear had "volunteered" her information about the shoot-out at Oglala. In addition to the fact that in both cases she claimed to have been confidante to the AIM murderers, there were other similarities. For example, both culprits were apparently tortured by the memory of what they had done. "I'll never forget the look on [his] face," Marshall told her; Peltier revealed that his deed "makes him sick when he he thinks about it." More interesting still, her stories in both cases precisely fitted prosecution theories of the crimes.
In Rapid City on February 19, 1976 Price and his partner, William Wood, took down the first of her affidavits, which was primarily concerned with the planning phase of the ambush. For some reason, Price didn't ask her who the other planners were. On February 23, these two prepared the second affidavit, a word-for-word copy of the first except that the sentence "I left Jumping Bull Hall at this point and did not return" was replaced by "I was present the day the Special Agents of the federal Bureau of Investigation were killed. I saw Leonard shoot the F.B.I. agents." Unaccountably, the standard field report, or 302 form, for the first affidavit is now missing. There are 302s for all four of the other Poor Bear interviews and affidavits. The following day, the witness was interviewed by Agent Edward Skelley, possibly because Agents Price and Wood were elsewhere; this was the day Anna Mae Aquash's body was discovered. Skelley (never informed by his FBI colleagues that they had already interviewed this critical witness - not just once, but twice) was told by Poor Bear that in addition to the Madonna Slow Bear who had forced her to watch the executions, a local youth named Ricky Little Boy had been present on the scene before, during, and after the events described. Therefore he must have witnessed the two killings. Yet Skelley admitted at Peltier's trial that he had never asked Poor Bear for further information on this important witness, not even for a physical description. Like Price's lack of interest in who planned the ambush, Skelley's indifference to the two eyewitnesses who might have corroborated Myrtle Poor Bear's story indicates the true opinion of this evidence held not only by the agents but by the U.S. attorneys, who - far from calling Slow Bear or Little Boy as witnesses - never even bothered to interview them at all.
The third affidavit was prepared by Price and Wood on March 31, following consultations with Canadian Department of Justice prosecuting attorney Paul Halprin, who wanted more details about the killings in preparation for Peltier's extradition hearings. The agents spent two days with Poor Bear in a motel in Sturgis, South Dakota, emerging with the more damaging version of the events that enabled the U.S. Justice Department to triumph in the courts of Canada. In her statement to Skelley, Poor Bear had said that Butler and Robideau had also participated in the killings. Yet though their trial went on for two months after her evidence was presented in Vancouver, the government did not use this witness in Cedar Rapids, presumably because her testimony might be more persuasive to FBI agents and prosecutors than it would be to the more objective citizens on a jury. Although she was listed as a prosecution witness, she was not called at the Fargo trial, either.