PAGES 146 to 160
PAGE 146
A. Dennis. Q. What did he do? A. He drove away. Q. What happened after that? A. He started shooting him, him and the officer were shooting at each other as he was driving away. Q. Did he get away? A. Yes. Q. Where was Mr. Peltier? A. He initially was laying beside me on the ground. Q. What did he do? A. He started running for the fence, and the officer shot him as he was going over the fence and he ran away. Q. So did he get away too? A. Yes. Q. What happened to the rest of you? A. We went to jail. Q. That would have been you? A. It was myself and Anna Mae, Kenny Loud Hawk and Russell Red Earth, and my daughter. Q. Who did you share a jail cell with? A. Anna Mae. Q. You had testified earlier that the two of you hadn't had much contact. Did that last up until the time that you were in that motor home together? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
PAGE 147
Q. Now you were in a cell together? A. Yes. Q. So when you were in the cell together did you have an occasion to visit with each other? A. Yes. Q. What was Anna Mae's state of mind at that time? A. She was upset. She was crying. She was afraid, but she was, I knew what she was afraid of, because I knew she had already been arguing with the cops up to that point, telling them they should, while we were in the ditch they should put me in the car because I was pregnant, I had a little girl, it was cold outside. So she wasn't afraid of them, but yet she was scared, and I knew that she was scared of Leonard and Dennis at that point. (Exhibit 27 marked For identification.) BY MR. McMAHON: Q. I would like you to look at that picture I just put in front of you. Would you look at the number on the back and tell me what the Exhibit No. is, please? A. 27. Q. What is that a picture of? A. Anna Mae. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
PAGE 148
Oregon? A. Yes. Q. Do you know when she cut her hair? A. No. Q. How long were the two of you in jail together? A. Probably a couple of weeks. Q. Where were the two of you taken after you left jail? A. They put us on a plane and they flew us back to Wichita together, and the Marshals came and met us at the airport, and they took me back to jail and they brought her to South Dakota. Q. Why did they take you back to jail? A. Because I wasn't supposed to have left Kansas and I had traveled back to Washington. So when I got arrested in Washington they returned me back to Kansas. Q. Do you know why Anna Mae was brought to South Dakota? A. Because there was a bench warrant on her up here. Q. Was that stemming from the September 5th arrest? A. Yes. Q. Did you ever see Anna Mae alive again? A. No. Q. When did you find out she was dead? A. On February 24th. Q. Would you like some water? JERRY J. MAY, RPR. CM 400 South Phillips Avenue, #305A
PAGE 149
Q. How do you remember it was February 24th? A. Because Dennis called me. Q. Dennis Banks? A. Yes. Q. How did you relate that call to the date of February 24th? A. Because he was in San Francisco, I was in Portland, Oregon. We had, in the house we lived was our office, and when he called I was sitting at the desk and I was speaking to him before he told me this, I looked at the calendar and it was my nephew's birthday, and I was remembering it was my nephew's birthday and I needed to call him, and Dennis told me they had found Anna Mae. Q. That's February 24, 1976? A. Yes. Q. You testified earlier that you and Mr. Banks were no longer together? A. Right. Q. I don't remember if I asked you what year was it that you separated? A. April of 1989. Q. How many children did you have together? A. Four. Q. At some point in time did you decide to cooperate with JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
PAGE 150
Mae's death? A. Yes. Q. Why did you decide to do that? A. Because I believed that from the day he called me I started always believing that it was the American Indian Movement that had something to do with it, because of the conversations I had heard throughout the time before I got arrested. And I came here that summer, and I was in the area for four months and in that time I visited different people I learned what happened to her. Q. How did it come about that you got in contact with law enforcement people about this? A. We contacted Jim Graf and had a meeting with him in Minneapolis. Q. Was this your idea, or did the FBI contact you? A. They didn't contact me, I called them. Q. So you voluntarily came forward? A. Yes. Q. What types of things have you done besides tell what you knew about what happened, what else have you done to help in the investigation of this matter? A. I have talked to several people that were involved in Anna Mae's death. Q. Did you talk to Troy Lynn Yellow Wood at any time? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
PAGE 151
A. Yes. Q. Did you record that conversation with the help of the FBI? A. Yes. Q. Did you have an occasion then to visit with the defendant Arlo Looking Cloud and Troy Lynn Yellow Wood? A. Yes. Q. Was that a separate occasion? A. Yes. Q. Did you record that conversation with the help of the FBI? A. Yes, I did. MR. McMAHON: Your Honor, at this time I would like to stop my questioning and recall her at a later time to go in to that portion of it. THE COURT: Very well. Do you wish to examine at this time with regard to this testimony, or do you want to reserve your examination until the testimony is completed? MR. RENSCH: I would like to examine at this time if I could, Your Honor, relative to what she has said thus far. THE COURT: Very well. CROSS EXAMINATION BY MR. RENSCH: Q. Ma'am, if I ask you a question that appears or seems to be confusing, would you stop me so that we can understand each other? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
PAGE 152
Q. How old are you? A. Forty-eight. Q. What type of education do you have? A. I graduated high school. I went to school in California, I got an Associate of Arts degree in Native American studies, and went on to school at UC Davis in California. Q. What degree did you get there? A. I was in my third year there when Dennis and I moved because he was fighting extradition, we left and moved to New York. Q. What do you do for a living? A. I am a casting director, I work on movies. Q. How long have you been a casting director? A. Since June of 1989. Q. How many movies have you worked on? A. Maybe thirteen or fourteen. Q. What are some of the movies you have worked on? A. Pardon. Q. What are some of the movies you have worked on? A. I did casting on Dances With Wolves, I have worked on Last of The Mohicans, I have worked on several TNT productions. I worked on Mohammed Ali movie, I did casting for some Tony Hillerman movies. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
PAGE 153
A. Yeah. Q. Who are some of the movie stars you have worked with? A. Kevin Costner, I have met Gene Hackman, Daniel Jay Lewis. Didn't always meet the actors when they came to the movies, sometimes they didn't, just depended. Q. In working with these movie sets and things of that nature have you come to know the movie industry somewhat? A. Yes. Q. How so? A. Well, I think I came to know it pretty well. It was what I did. Q. Did you ever come in to contact with writers in the movie industry? A. I know who the writers were, they didn't always come to location. Q. You have met some writers because of your occupation in the movie industry, haven't you? A. I don't know that I met them. Sometimes, you know. Tony Hillerman came to our movie location, he wrote the book that the movie is based on. A screen play has been rewritten, I didn't meet the people that wrote. He was there, I didn't make a point of meeting him. I didn't make a point of meeting the writer. They are not usually on location. Q. So there is a person who writes the book that a movie is JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
PAGE 154
A. Pretty much. Q. Then there is another person who writes the screen adaptation to it, is that how it works? A. No, the person writes the book and then there is the person who changes it in to a script. Q. Have you met people who have changed books in to scripts? A. No. Q. Do you know who those people are because of your being involved in the movie industry? A. If I looked on my crew list I might know who they are, but I don't. I work with the extras and the producer and the director, so I don't normally work with the writer, that is not my job. Q. You also know from being involved in the movie industry that there is a lot of money to be made if a movie is successful, isn't that true? A. If it is successful, yeah, I am sure. Q. Millions and millions of dollars if it is successful, right? A. Yeah. Q. You worked on Dances With Wolves, isn't that true? A. Right. Q. Tens of millions of dollars if a movie is successful, JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
PAGE 155
A. I heard it is true. Q. How much do you make a year right now? A. It depends. MR. McMAHON: Objection to relevance. THE COURT: Sustained. MR. RENSCH: Like an opportunity to make an offer of THE COURT: You can. MR. RENSCH: Could we break now and do that, and I could continue with this witness. THE COURT: We are close enough to noon, we will do that now. Remember what I told you before, don't talk to each other about the case, don't do outside research, don't talk to each other, don't make up your mind now, because you haven't heard all the evidence yet. We will be in recess until 1:15. Please stand for the jury, counsel to stay. (Jury Leaves). THE COURT: Out of the presence of the jury. MR. RENSCH: May I ask some questions in the form of an offer of proof, Your Honor? THE COURT: Yes. MR. RENSCH: How much money do you make in a year, Ma' am. A. It depends on the movie and the budget of the movie, it JERRY J. MAY, RPR, CM 400 South Phillips Avenue, tt305A
PAGE 156
Q. Let's talk about the year 2003, how much money did you make in 2003? A. I am only trying to remember which movie it was, I am sorry. Q. Just the whole year, 2003, all the money that you made? A. Probably not very much that year. Q. Well, are we talking, can you give us a ballpark on an amount ? A. Okay, we are talking about last year. Q. Yes. A. Probably only about maybe $20,000. Q. And in the five years prior to that time what is the most you made in any one year? A. Maybe thirty five. Q. $35,000? A. Maybe. MR. RENSCH: Your Honor, at this point I would rely on this as an offer of proof and request the opportunity to inquire about it in front of the jury to establish a possible bias in the testimony in light of the fact that there is a great deal of money that can be made if one were to write a book or write a screen play about this subject which has so very much interest in our country, and from that standpoint it could color her testimony. In support of that I would tell JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
PAGE 157
matters, well, should be brought in to question. And the motivation for testifying has been opened by the government in its direct examination by asking why did you come in and tell the FBI these things, and from that standpoint her bias would go into the theory of the defense, and we would request an opportunity to use this information to secure my client's fair trial rights, his right to confront and cross examine a witness, and his due process rights. THE COURT: Well, what does the government have to say about that? MR. McMAHON: Your Honor, he has laid no foundation that she is going to make one nickel off of this. Anybody that is sitting in the courtroom can write a book. It is totally fictitious, and it is just a smoke screen, if you will. He has made no connection whatsoever with her employment and the fact that she decided to come forward and tell what she knows about a murder case. THE COURT: Alright. THE WITNESS: Can I say something. MR. McMAHON: No, unless the Judge wants you to. THE COURT: You can if you want to. I am ready to rule, but you can if you want to. THE WITNESS: That I now need to change my career and look for further different employment, because casting is JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
PAGE 158
THE COURT: Why is that? THE WITNESS: Because I have come forward with this information. THE COURT: Alright, thank you. Well, first of all, frankly, counsel for the defense, I don't think you knew what the answers were going to be. Of course that is understandable because you don't get the benefit of depositions in a criminal case like you do in a civil case, and so I think we had a little discovery that went on here as to what she earned. I think you thought the figures would be a lot bigger. So to argue that she is going to write a book, well, casting doesn't have anything to do with writing, and it hasn't been shown she has any ability to write a book. If she were going to, she could have before this. So I don't think that -- you know, you can certainly inquire in to her motive in front of the jury for coming forward, but I think this one is a wild goose chase. You can go in to motive, but I don't think you have shown anything here. So your offer of proof is received, but I don't think it has established anything. Anything further? MR. RENSCH: Not from me. MR. McMAHON: Not from me, Your Honor. THE COURT: We will be in recess until 1:15. (Recess from 12:00 until 1:15). JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
PAGE 159
talking about hearsay a little bit, and so for the guidance of counsel and for the record, as to the general talk or knowledge at Farmington, New Mexico at the AIM convention, that Anna Mae Aquash was being considered by the AIM members there generally to be a fed or an informer, and Ms. Nichols was in the middle of all that as she was with Mr. Banks, as well as apparently active in her own right at that time. Now that's not hearsay, although I have limited its use, but then from what the government claims they are going to prove, the specific things said to the deceased Anna Mae Aquash by persons other than the defendant, those go to, as I see it, the decedent's state of mind, and ultimately whether Anna Mae Aquash voluntarily went from Denver to Rapid City, stayed in Rapid City, then to Rosebud, then on to Pine Ridge where she was murdered. And given that they were all riding in a little Ford Pinto during all of that time, what she would have manifested is relevant and material, but I am going to read now from an October 9, 2003 Eighth Circuit Court of Appeals opinion. United States versus Malik, M-A-L-I-K. It is 345 F.3rd 999, the case starts, and at page 1001 the Court said Malik contends the statement of the informant relayed to the jury through the testimony of the police officers were hearsay, highly prejudicial and not relevant. "When the out-of-court statement has relevance when we only consider the JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
PAGE 160
statement was true or not, but just its effect on those who heard it, then the statement is not hearsay." That's G. Michael Fenner, THE HEARSAY RULE 31, 2003, that book. See also Federal Rules of Evidence 801. For example, an out of court statement is not hearsay if it is offered, not for the truth of the matter asserted, but instead to explain the reasons for or propriety of a police investigation. So bring in the jury, please. MR. RENSCH: May I say something. THE COURT: Yes. MR. RENSCH: I would like to indicate to the Court that I am going to in cross examination delve in to some of the areas I objected to, and the reason for that is I have to delve in to those, and I would like the opportunity to do so without waiving my objections to the previous evidentiary objections on that. THE COURT: Is that a statement, or a question? MR. RENSCH: A little bit of both. I just want a spot I can cite to to preserve in the record the reason I am going to be asking certain questions that deal with the matters I have objected to are because I have to deal with those now, and I don't want to waive any appellate right. THE COURT: Well, that's your choice. I mean there is no objection before me, and what ever you do with your JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
|