The defense expected that the "firsthand witness" to the killings, whose affidavits had been used a few weeks earlier in the Vancouver hearings on Peltier's extradition from Canada would now be put on the stand to cinch the case. (She had also implicated Robideau and Butler.) Only during discovery procedures for this trial, the defense had learned of the existence of an earlier affidavit in which this person stated that she had left Oglala the day before the shoot-out and therefore wasn't a firsthand witness after all. By a strange coincidence, this crucial witness was the same Myrtle Poor Bear the FBI had "supplied" to the state of South Dakota as a prosecution witness and who had proved so miraculously helpful in convicting AIM leader Dick Marshall of the killing at Scenic. The defense was prepared to show that this earlier affidavit, which was in exactly the same format as the others, had been prepared for use in Vancouver as well, but had been withdrawn in favor of later versions. Except that at the last moment, prosecutors decided not to call Myrtle Poor Bear as a witness. The defense had experienced visions of exposing FBI fabrication of evidence for use in their "war" against AIM. But the prosecutors wouldn't cooperate in proving themselves liars - so that particular opportunity failed to pan out.
Instead, the U.S. attorneys produced a white man named James Harper, who had shared a cell in the Cedar Rapids jail with Dino Butler and five others. He testified that Dino had said he would "waste" witnesses against him, like Norman Brown and Myrtle Poor Bear. He also testified he had been told the AIM group had posted spotters with walkie-talkies to help them prepare the ambush, and that one agent was killed at close range while pleading for his life. His testimony included Butler's plan to kill Judge Andrew Bogue as well as AIM's use of the motor home pulled over in Oregon to transport weapons and explosives. In cross-examination by the defense, Harper gladly agreed when asked "you would not mind at all having some help from anybody that might be in a position to help you with respect to the charges against you?" Harper also indicated he had a long-standing and pervasive record of lieing to police about his name as well as lieing at other times in his life "to get something he wanted." Like Louis Moves Camp before him in St. Paul, James Harper had filled in the missing pieces in the government's case, including the "ambush" that would serve as motivation. He also dragged in a number of people whom the FBI wanted to see incriminated or made credible. Yet he turned out to be a doubtful choice as the prosecution's final witness. To start with, it seemed inconceivable that Dino Butler would reveal such dangerous secrets to some white jailbird / potential snitch as soon as this man turned up in his cell. Also, his account collided with those of two other government witnesses, Draper and Brown - who had denied any knowledge of the presence in the camp of Myrtle Poor Bear, Harper's "witness" to the killings. As to the content of the story, did the prosecution expect the jury to take seriously - for example - the statement that the ambushers had a spotter with a walkie-talkie radio stationed at Oerlichs, thirty fine miles away from what Harper called the "Jumping Bull Hall residence" (and well out of walkie-talkie range), when Draper and Brown had made it clear that most of the AIM people were still getting up when the shooting started? [As somebody said, it wasn't much of an ambush if nobody was ready.]
A late surprise witness for the defense was Mrs. Thelma Hess, James Harper's erstwhile landlady, who became disturbed after reading his prosecution testimony and got in touch with the defense. She told the court she had contacted the defense "Because I had been trying - well, the other day I didn't know anything about this case, and I didn't know anything about James Harper's testimony until another person asked if I had read Jim Harper's statement and I went back and found the paper and read it and in Jim's wording, and that, wasting this person and wasting that person. I recognized this, these were the things he told me; that if he ever got picked up that he would waste somebody. He didn't care who it was, whether it was a jailer or an inmate. In fact, he said 'Hopefully I can find somebody that is a no-account in that jail, a queer or a rapist.' Wouldn't make any difference whether they were wasted or not. He even told me that he would give information on anything. He said he didn't care how close a friend who it was, he was going to hurt. . . . That then he could get the Federal agents interested in the Texas case. He was going to turn state's evidence against other people. This is what his intent was. He said he would have to have attention to get people to listen to him so he could deal with them. The prosecutor responded "I never knew such a person existed."
Senator Frank Church (D, Idaho), chairman of the Select Committee on Intelligence, told the court that the committee had found cases in which the FBI had released false information not only to discredit but to cause violence to targeted organizations. Next day, Crusade for Justice leader Corky Gonzalez described the national police bulletin, so oddly similar in timing and intent to the Dog Soldier Teletypes, which said that "myself . . . . Corky Gonzalez, was involved in setting up terrorist groups in association with A.I.M. . . . to kill a cop a day on July 4th, and that I was in custody of a rocket launcher, rockets, M-16s, and hand grenades. This went out across the country." On the basis of the Dog Soldier Teletypes and other evidence, the defense now wished to subpoena FBI Director Clarence Kelley.
Judge McManus, like Judge Nichol, had initially been sympathetic to the government's case; but he was now so suspicious of the FBI's performance that he granted the defense's motion to subpoena Kelley, the first FBI Director ever to serve as a witness in a court trial. Just three weeks after AIM had been singled out for Bureau attention in the FBI's Domestic Terrorist Digest, Director Kelley expressed surprise that his men should regard AIM Indians as "terrorists." "It is my very definite knowledge," he said, "that the American Indian Movement is a movement which has fine goals, has many fine people, and has as its general consideration what needs to be done, something that is worthwhile. It is not tabbed by us as an un-American, subversive, or otherwise objectionable organization." Asked if there was one shred of evidence in FBI files to support the Dog Soldier Teletypes, Kelley answered, "I know of none. I cannot tell you." Of course, depending on his emphasis, this answer is somewhat ambiguous. A few months earlier (March 17, 1976), Kelley had announced that a "search of our central records reveals no information concerning the establishment of counterintelligence disruption programs against the American Indian Movement." At that time AIM was still reeling from the disruption caused by Douglass Durham, and might well have suffered bloody retribution had the Dog Soldier Teletypes been taken seriously. In regard to COINTELPRO, Kelley stated that this program had been terminated in 1971, although the Church Committee had concluded that FBI counterintelligence was still going on. As is evident from the Dog Soldier Teletypes, only the name "COINTELPRO" had been discontinued.
Mr. Kunstler pressed Mr. Kelley about the paramilitary operation the FBI search on the reservation soon became. Kunstler: "What I'm trying to refer to is that agents and there has been some testimony in this record, agents on the Pine Ridge Indian reservation have, among other things, M-16s, automatic weapons, they have bullet proof vests, there are Army type clothes issued, jackets and so on. That is somewhat different than agents normally have in, say, Cedar rapids, or New York or Chicago, isn't it?" Kelley: "Yes. That is different." Kunstler: "And that is due . . . to the fact the reservation is essentially considered to be more dangerous than Cedar Rapids, Iowa?" Kelley: "More dangerous perhaps to FBI agents, two of whom have been slain." Kunstler: "Hundreds of native Americans have been slain, too, haven't they?" Here Mr. Kelley lost his composure and his voice rose: "There have been many Americans slain but two FBI agents were slain too, and I think they have reason to be really concerned about their own lives!" Kunstler: "One of the reasons for equipping them this way is that there is a fear that strangers who come into isolated areas on the Pine Ridge Indian reservation who are not known to the people there, might themselves come under attack out of fear. Isn't that correct?" Kelley: "I don't care who it is that comes in! If they are threatened they have the right to protect themselves!" Having made the defense attorney's point, Director Kelley was excused without further questions.
When the case went to the jury on July 11, the prosecution had made some telling points: No one could doubt that the defendants had participated in shooting at the agents. No one could question the fact that the agents were seriously outnumbered. Nobody could dispute that somebody had approached and killed two wounded men , at least one of whom was no longer able to defend himself. Everyone knew that the armed group of which the defendants had been leaders was seriously implicated by its possession of the dead men's weapons. With these points clearly established, the prosecutors (and the FBI) felt they couldn't loose. But in its eagerness to establish premeditation and thereby exact the maximum penalty, the government counted too much on the doubtful testimony of Draper and Harper. [My private opinion: All remaining evidence was completely inconclusive.] In instructing the jury, Judge McManus emphasized the law on "self-defense." After deliberating for five days, the jury twice informed Judge McManus that it was "hopelessly deadlocked" and wanted to quit without reaching a decision. A defense motion for dismissal of charges was fiercely contested by the prosecution, which was confident it simply could not loose. Refusing to declare a mistrial, McManus sent the jury back to think again. On July 16, the jury returned its four separate verdicts - two for each defendant on the two first-degree murder charges. The courtroom was stunned and hushed after the first verdict of "not guilty" and joyous after the fourth. The entire defense table burst into tears and embraced each other.
On August 9, 1976, FBI Director Clarence Kelley called an ominous conference with U.S. attorney Evan Hultman, prosecutor in the ResMurs trials, Associate Director Richard G. Held, and several others. All concurred that the RESMURS case on James Theodore Eagle was weak and that this should be dropped so that the full prosecutive weight of the Federal Government could be directed against Leonard Peltier. Throughout the Cedar Rapids trial, Leonard Peltier had simply been included in most of the descriptions of events, and no good evidence that his actions had differed in a meaningful way from those of the defendants had been brought forward. Had he been tried with Butler and Robideau, it seems almost certain that he would have been acquitted. But now, with the collapse of the case against Jimmy Eagle, he represented the FBI's last chance to obtain a conviction in the killings of the two agents. The prosecution and trial of Leonard Peltier took place at an unlucky time, when congressional sentiment was turning heavily against the Indians. (Matthiessen, ibid, pp. 317-318.) Peltier was removed from Vancouver to Rapid City on December 16, 1976. Originally the case was assigned to the federal district court in Sioux Falls, where Judge Nichol would have presided, but when Nichol excused himself, he was replaced by Judge Paul Benson - whose bias was clear two months before the trial. In January 1977, carrying out Judge Benson's warrant, the FBI broke down Angie Long Visitor's door and jailed her as a material witness in what her lawyer, Kenneth Tilsen, calls "an outrageous violation of due process."