Transcripts

text | pdf |

---

KEVIN MCKIERNAN: Well, first, there was an attempt, which was revealed early this morning, to prejudice the jury. That is an apparent attempt to do so. Marshals brought in literature, which apparently had been sent to the homes of jurors on the Wounded Knee panel, characterized by defense lawyers as hate mail, anti-American Indian Movement literature. First, eight jurors received the pamphlet Renegade-- The Second Battle of Wounded Knee, which is put out by the American Opinion Bookstore in Minneapolis, a John Birch organization. This was sent to jurors, to eight of them.

And secondly, to those who were Catholic on the Wounded Knee panel, Pope Pius XII 1937 encyclical on Atheistic Communism was mailed. This document originated with the National Catholic Welfare Conference. At least, it bore that stamp. One half of the jurors, incidentally, on the Wounded Knee panel are Catholic. This was turned over to the judge this morning. Some jurors said they had not read it. One said that her husband tried to hide it from her so that she would not be prejudiced. The literature was all postmarked in Albany, Minnesota.

The suggestion was made in court this morning that the FBI investigate the mailings, investigate the apparent attempt to prejudice the Wounded Knee jury. Of course, it's a federal crime to attempt to influence a jury. The defense, however, said that we don't want the FBI to do the investigating. We'd like the Postal Inspectors to do so. At this time, Judge Nichol has taken the literature under advisement. As the matter sits now, the letters will be turned over to the US Attorney's Office in Minneapolis for a decision in that investigation.

Secondly, the trial was fully halted for an entire day with other matters, which began yesterday when Father Paul Manhart of the Sacred Heart Catholic Church in Wounded Knee was testifying. His testimony yesterday was interrupted by the appearance of a petition signed by over 100 Wounded Knee residents, which went to the effect that they backed the so-called occupation, and they wanted the government Marshals to stop firing on their guests, The American Indian Movement, in Wounded Knee.

Quite a controversy resulted about the chain of custody in whose possession this document was, and whether or not it had been altered. FBI agents appeared in court today and were asked why the copy that they sent over from their Minneapolis office yesterday was different from the copy, the original copy signed by those Wounded Knee residents.

So there was a real confusion this morning, kind of a, who done it? There were markings that were different on some of these Xerox copies than on the original. And there appeared that there might have been a tampering with the resolution. Which FBI man did it was the question. It was quite unclear. But it caused Judge Nichol to become quite angry at what appeared to be a deliberate attempt to cover up the identity of the evidence tamperer.

So he signed a written order directing that the complete and entire files of the Federal Bureau of Investigation be bound and sealed with all materials relating to the Wounded Knee incident of February 27, 1973 to May 8, 1973. He also ordered the defense be allowed to inspect all that material in the FBI files, except for personal interview reports. And he said that if the FBI refused to release any other item of information, that he, the judge, would order that item be delivered to court for his evaluation and decision as to further disposition.

And then, Judge Nichol, who seemed quite angry, shouted that he used to think that the FBI was one of the best bureaus to come down the pike. But now, "I think," and this is a quote, "I think it's deteriorated." US Attorney Heard said, "Your Honor, I don't think the FBI will agree to open its files on Wounded Knee."

And Judge Nichol responded, "I don't care what the FBI agrees or disagrees on. This is a search for the truth. And I'm quite disturbed. I was quite disturbed about the negligent role of the FBI two years ago when I tried the American Indian Movement case on the takeover of the Naval Air Station in Minneapolis. Now, I don't care how many FBI agents are in the courtroom listening to me at this time. I think that that bureau has deteriorated badly."

And Judge Nichol indicated that, either the FBI had not been frank with the US Attorney, or that it had deliberately doctored some important documents. Later, he said, "I wonder what the FBI is trying to hide about Wounded Knee." And the US Attorney responded that they were not trying to hide anything.

And then, one of the defense counsels, I believe it was Ken Tilsen said that he felt that it would be good to have the order in writing because he thought that it might be ignored otherwise. Judge Nichol shouted again, "I'd just like to see the FBI refuse to honor one of my orders. Something like this."

The reason that there were exceptions to Judge Nichol's order, that is that some material may be evaluated by him before turning it over to the defense, is that Judge Nichol said that he could conceive of the fact that some of the material in the FBI files related to informers. And he said that, "I guess, I can conceive of the fact that in this democracy, unfortunately, we do need informers."

So the remainder of the day then was taken up by the testimony of three FBI agents, as well as by quite a bit of arguing about whether or not this resolution could come before the jury, the resolution and the signatures, which were at the center of all the confusion. The first agent to testify was Jack Hoffer, who works in the Minneapolis office. He said that he sent a copy over yesterday, but he did not know that there was an original.

He contacted another agent in Saint Paul, John Hoyt. John Hoyt testified today that he had been the one who obliterated, to use his language, some of the markings on the document. In other words, he took a piece of white paper and covered part of the document up while he Xeroxed it again, and thereby obliterating those markings on it.

SPEAKER: Did he explained why he did that, Kevin?

KEVIN MCKIERNAN: He said that he thought it would conform more to the original, although he testified later that he had never seen the original.

SPEAKER: Mm-hmm.

KEVIN MCKIERNAN: William Kunstler asked him, "Do you know that it's a federal crime to alter a piece of evidence?" This was objected to by the government, but Judge Nichol overruled the objection. And the FBI agent answered, "Yes. I know that." He testified that he never notified the US Attorney's Office of the, quote, "obliteration," unquote. In fact, he said that no one else in the world knew that he had changed it. He had taken it upon himself to do so. Later, he testified that he didn't know that the original existed at the time that he had obliterated the copy.

About noon today, the defense requested that the rest of the FBI testimony-- that is the two agents who would follow-- that that testimony go before the jury, that they be brought in. The defense said, the jury was in when Father Manhart said that he thought that the copy was altered. That is the copy of the signatures. And the presumption at that time in front of the jury was that the alteration, presumably, had been done by the defense. So the defense wanted the jury to know that the FBI had done the alteration.

Judge Nichol then granted the defense motion to show the jury all the copies. But first, he said that he wanted to have testimony from the other FBI men who may have played a part in altering that copy. And then, he would bring back Father Manhart.

FBI agent Max R. Fritschell, a Chicago Bureau employee, then came into court. He said that he first saw the original resolution last March, March 8 or 9 in Pine Ridge when he was there on the Wounded Knee assignment. He said the Bureau of Indian Affairs Police gave it to him.

At that time, he said, the resolution and the signatures were together. He Xeroxed all of the material. He testified that about March 12 or 14, a few days later, that he placed some notations in his own hand on the first page of the resolution, and also on the first page of the signatures. And then, also on other pages. He said the other writing, the other markings on the documents were in the hand of two BIA agents.

However, despite the fact that he said he saw the original resolution for the first time on March 8, his report to his FBI superiors said that he first saw the resolution and petitions on March 18, 1973. And he thought perhaps that there the discrepancy could be explained by a typographical error.

FBI agent Fritschell testified that he made marks on the signature petitions to determine the validity of names and residences in Wounded Knee, those who would sign the petition. He also wanted to determine which names on the Wounded Knee list might be associated with the American Indian Movement. Later, however, the agent testified that he had read the resolution, and he had read the language, which said that those signing the petition wanted the United States Marshals to stop harassing their guests, the American Indian Movement.

The last agent to testify today was Boyd Adsett, a man who has been with the Bureau for 23 years. He is an agent who was on the Pine Ridge Reservation last March. He was assigned to the Government Command Post covering Wounded Knee. One of his duties included filing the resolution in question, and the petition, in an FBI envelope used for exhibits. He said that he saw these documents at the Command Post, and so filed them. But he doesn't know when or how they were received.

Well, the net result of the testimony of all the agents and of all the disagreements and confusion in court today was that the defense and prosecution agreed to a stipulation. And this will be presented to the jury tomorrow. It presents both the original and altered copies of the document into evidence for the appraisal of the jury. The judge tomorrow will read that stipulation. And then, he'll continue his examination of Father Manhart.

The compromise stipulation from the government and the defense will allow the Occupation Support Resolution with the attached copy of over 100 Wounded Knee signatures into evidence before the jury. Now, had it not been for the alleged tampering with the document by the FBI, it is doubtful, at least during the government's case presentation, that such evidence favorable to the defense would have been admitted in the first place.