Trial of Arlo Looking Cloud
MR. MANDEL: Your Honor, this refers to an interview
that took place pursuant to a proffer that was made. We
agreed it would not be used against the defendant. We did not
use it. For the defendant to seek to put this in, it is
hearsay evidence, it is not admissible under any exception to
the hearsay rule. We have steered clear of it, because it
wasn't usable, we agreed not to use kind of a queen for a day
thing, we agreed not to use it, but I don't think we can have
that turned back on us. And as I say, this at this point is
straight hearsay testimony. He is seeking to offer it, we
didn't offer that and it doesn't fall under any of the
exceptions to the hearsay rule.
MR. RENSCH: It's my client's statement, the hearsay
rule does not apply to it, and it is exculpatory.
THE COURT: We are going to have a hearing out of
the presence of the jury on this one.
(End Bench Conference).
THE COURT: We are going to have a hearing out of
the presence of the jury, it is time for an afternoon recess
anyway. So don't talk to each other about the case, we will
be in recess maybe a little over fifteen minutes, I have to
deal with an evidentiary matter. Please stand for the jury.
THE COURT: Please be seated. Alright. Does
Mr. Ecoffey need to remain on the stand for this hearing.
MR. MANDEL: I guess that all depends what comes up,
THE COURT: Well, okay, sit tight then. The
government asked for the side bar so the government may
MR. MANDEL: Your Honor, under the rules of evidence
the United States has the ability to bring in the defendant's
statement as admissions against interest. The defense does
not have the right to bring in other statements, and in fact
these aren't admissions against interest. The defense claims
the statement it wishes to bring in is exculpatory. What
happened was in 1994, the defendant, represented by counsel,
came in and agreed to use a proffer. The terms of that
agreement were that we would not use the statement against
him, we would not do so, we didn't proceed on the basis of
that statement. As part of that agreement at that time he
also took a polygraph test, and frankly that polygraph test
came back showing deception on the issue of whether or not he
fired the shot. Now this is stuff that we didn't go in, we
couldn't go in, isn't properly admissible before the Court.
Now the defense wants to go in to it and offer it. Our
position is very simple, as to the statement there is not the,
any basis for the defense to bring it in. Doesn't fall under
any exception to the hearsay rule, and the fact that it is the
defendant's statement as he asserted doesn't make it
admissible, and the fact it is an exculpatory statement by the
defendant doesn't make it admissible. What the difference
between the government bringing it in and the defendant
bringing it in, the answer is simply this. For us it becomes
a hearsay statement that suffers the same problem as all
hearsay statements, and why they don't get in, not subject to
cross examination. Stuff we choose to bring in that is
inculpatory, or exculpatory for that matter, that's our right,
but not the defense's right to enter those hearsay statements
MR. RENSCH: First of all, they are claiming that
the statements that they have admitted thus far of my client
are admissible as admissions against interest. They have said
in part that the statements that are admissions against
interest are consistent with the statement that was given in 1994.
THE COURT: Wait a minute.
MR. RENSCH: Hold on.
THE COURT: I want to ask you a question, so just a
minute. That's the only way I can learn things, Counsel.
Hold tight, I want to ask you questions. How is he saying
that because the '94 statement isn't in evidence, how are they
saying it was consistent.
MR. RENSCH: The reason I tried to interrupt is they
have taken the position in the extradition proceedings in
Canada against John Boy Patton that Arlo Looking Cloud has
made statements about this matter involving John Graham, and I
believe the extradition matter refers to three statements and
says those statements are consistent. Now the point I was
going to make was that they are saying that what they are
introducing now would constitute an admission against
interest, and that would be an exception to the hearsay rule.
To the extent the '94 statements are consistent to these
admissions against interest that the government is now placing
before the jury, they are likewise an exception to the hearsay
rule. Even separately and apart from that, separately and
apart from that, while they try to say that the statements are
generally consistent, I am talking about the 2003 statement
and the statement in July of 1995 where he went out there to
the scene. They have talked also about some minor in
inconsistencies and he has testified about some minor
inconsistencies, so to the extent the 1994 statement would
buttress the consistencies with these statements, it should be
allowed in to support the statements from '95 and 2003. The
same way if he were on the stand and they were to come in and
say, well, you have made this statement and it is inconsistent
at such and such a time, and I could then bring in a previous
or a prior consistent statement to buttress it, it's the same
theory, even though he is not taking the stand. When they put
his statement on the stand in evidence, and there is a prior
consistent statement in certain respects, inconsistent in
others to the extent that it would be against interest, it
should come in through the hearsay rule, it should come in
through buttressing the existence of these statements.
THE COURT: Just a minute. I am not familiar with
anything coming in through the hearsay rule. It comes in
either because it isn't in the hearsay rule or an exception to
the hearsay rule, the hearsay rule keeps things out.
MR. RENSCH: I meant to say through the exceptions.
THE COURT: Go ahead.
MR. RENSCH: That's my position. He made this
statement with the government asking him a series of long
questions back in 1994. It would be our position that to the
extent they have attacked the statements of Mr. Looking Cloud
that are in the record now, we are allowed to bring this up so
that we can show that there is consistency. And to the extent
that there is not consistency, so they are trying to say the
statements are against interest, it shouldn't be admissible
for that reason as well. If they talked to him in 1994 with
this proffer agreement against him, but they won't use it, it
doesn't mean he can't use it.
THE COURT: It might. What about the counsel for
the government has represented that part of the proffer was
taking a polygraph, and the polygraph indicated deception with
regard to whether or not apparently Mr. Looking Cloud was the
one who had used the gun. Well, my question is not wanting to
complicate this any further than necessary, but you know the
Eighth Circuit there is no per se rule as to the exclusion of
hearsay. There is in some Circuits, but there is not in the
Eighth Circuit. I just wrote an opinion that dealt with that
that I released last week, so I am really fresh on the law on
that point. If the proffer comes in, then, and maybe the
government wouldn't try to put that legal issue in the case,
but if the proffer comes in then, does at least then do we
have a Daubert question with regard to the polygraph, because
that is in the Eighth Circuit what the law is, that you have a
Daubert. I excluded one. I don't have any idea what the
procedures were or anything about this one, I don't know
anything about Daubert, which is impossible to get in to,
what's your position on that?
MR. RENSCH: First of all, the first polygraph that
he took was inconsistent, that was administered by an FBI
agent who was present in Rapid City. Second polygraph he took
indicated a fail. This was a polygraph in Denver. It would
be.our position that, you know, we are not trying to bring in
the polygraphs. We are trying to bring in the contents of the
statement to buttress what they claim now would be
inconsistent, and to provide for exculpatory information to
the extent that it is consistent with the theory of our
defense. As far as getting in to polygraphs, you know, I have
tried in a murder case in Pierre to get in an exculpatory
polygraph that showed that he passed the polygraph saying that
he didn't help with the killing. Not in this particular case.
I am not fresh on the law on that right now, but I will tell
you this, I have spent over nine weeks of Sunday trying to
figure out how to get that in. I don't know if even if we get
in to the contents of his statement somehow a polygraph
administered back in 1994 or 1995 somehow miraculously becomes
admissible. I don't see how it would become admissible simply
because he made a proffer. I am trying to get this in to show
what he said back then, not to show that the government has
violated some agreement or anything like that.
THE COURT: I am not keen to get in to the polygraph
issue, but since it was brought up, I want to talk about it.
MR. RENSCH: An inconclusive on a polygraph is one
thing, one polygraph examiner can read an inconclusive and say
that's bad, another polygraph examiner can read an
inconclusive and say that's a fail. If I wanted to dig in to
that, there is a possibility one could look at his first chart
and say he passed that and thus, you know, he should have
obtained some benefit from this matter back in 1994. But it
seems that we would be hiding reality if we, he could not get
into the fact that he told them what his position was back in
THE COURT: Do you have any authority, getting away
from polygraphs, because that is something that I don't want
to get in to. I just wanted to explore what does it mean,
because I heard about it for the first time, but with regard
to the statement position, do you have any authority you are
MR. RENSCH: I don't have any with me, I would
request an opportunity to look it up. My thinking is simply
this, if it is a statement made by the defendant after being
advised of his rights, then to that extent it would be
admissible because of the statement of the government. The
government, if -- oh, and another part of the proffer
agreement was if he were to take the stand and testify, they
would be able to utilize that for impeaching information. If
they would be able to utilize it for impeaching information,
and if they now bring statements that he has, they are going
to claim in front of this jury they are inconsistent in
certain respects, he should have the right to buttress his
position with what was said to them back in 1994, but I do not
have a case at my fingertips right now.
THE COURT: Thank you. I take it counsel for the
government wants to say something before I rule.
MR. MANDEL: Start off with this, this is no
surprise the defendant wants to use it, he knew it a long time
ago, and he knew we weren't going to bring it in, that we
couldn't use it because it was pursuant to that proffer. So
it is not some big shock as we stand here today, and the rules
of evidence as to hearsay are not because the defendant want's
to put it in, or because it is helpful, or because the
statement was given to a law enforcement officer that it then
becomes admissible. Under rule 801 sub B sub 2, admission of
a party opponent, the statement has to be offered against the
party. Got to be offered by the opponents, he can't offer it
himself. This is inadmissible hearsay. Thank you, Your
THE COURT: Let me see the proffer agreement and
the, I assume there was a proffer statement that was reduced
MR. RENSCH: I do have one, it is in a blue
notebook. I have lost an entire notebook. I don't have it
with me, I took it back to my office to work on it over lunch.
THE COURT: Well, the government would have copies.
MR. McMAHON: You want the transcript, the letter
and this transcript?
THE COURT: Yes, both, please. Well, instead of
looking at the top of my head, you as well as the people in
the audience might as well have a.break. So we will be in
recess for fifteen minutes until I read this. Thank you.
MR. McMAHON: Your Honor, can we approach?
THE COURT: Yes.
MR. McMAHON: I just wanted Tim to be aware that the
only copy I have is one I have highlighted.
MR. RENSCH: I have copies that are blank.
THE COURT: Doesn't make any difference to me. I
have got one, I will just read it.
( Recess at 3:35 to 4:00.
THE COURT: During the recess the government,
counsel and counsel for the defense both came back together to
chambers to urge their respective authorities. The defense
urged rule 806, the government cited United States versus
Waters, which my lawyer had already made a copy of for me, and
along with some other cases. The ruling is as follows: 806
is not applicable, because it starts off saying when a hearsay
statement, which this isn't, or a statement defined in
801(d)(2)(C), (D) or (E) has been admitted in evidence. Well,
which it hasn't, because 801(d)(2) (C), (D) and (E) are things
that we aren't really talking about here, authorized agents
and so on. (d)(2)(A) talking about hear the party's own
statement, and that isn't included within the rubric of 806,
so 806 doesn't apply. 801(d)(2)(A), as I mentioned, does
apply, and under that in both the Waters case, which is a case
interestingly coming from the District of South Dakota at 194
F.3rd 926, a 1999 decision, re-hearing denied in 2000. The
Court said Rothgeb did not, and could not, overrule the rules
of evidence. Federal Rules of Evidence 801(d)(2) provides an
out-of-court statement offered quote against a party end quote
is not hearsay. In contrast here, Waters, who is the
defendant, not the government, sought to introduce a prior
statement consistent with his plea of not guilty. And the
Court goes on to say such statements when offered by the
defendant are hearsay, except in narrow circumstances not
present here, and not present here in this case either. Then
also I would cite in support of my ruling to not allow going
into the proffer United States versus Sadler, 234 F.3rd, 368
at 2000, Eighth Circuit decision. So the objection is
sustained, and I want to state for the record I reviewed the
proffer agreement. The proffer agreement as well as the
proffer itself in preparation for the ruling. Alright.
MR. RENSCH: At this point can I make an offer of
proof? At this point if allowed we would have sought to
introduce the transcript, and ask that it be marked and placed
into the record as an offer of proof, and that I would have
used it to try to fight the fact that the government is going
to say and has said through their testimony that in 1994 when
Mr. Looking Cloud was approached he denied being there, and
then they brought in statements where he later said he was
there and reenacted the events. And we would just request the
Court utilize that as exculpatory hearsay, and that given the
fact that that statement was made with the full knowledge and
participation of the government, and with this man being
subjected to questioning, and the fact it is consistent in a
very good sense with the statements that have been offered by
the government, that it would fall within the residual
exception to the hearsay rule and would just request the Court
reconsider its ruling.
THE COURT: So you want to have the proffer letter
as well as the proffer made an Exhibit in the Court file?
MR. RENSCH: Just the transcript of the contents of the tape
interview in 1994 when Mr. Looking Cloud told them essentially
what he told them in 2003 so that there is some reference and
I don't need to go through it all by way of an offer of proof.
Not the proffer letter itself, the actual transcript of the
THE COURT: That's what I am talking about, because
the proffer letter which is just two pages, that's the
agreement, but then I read a cover sheet, and then I read 24
pages of transcript.
MR. RENSCH: Very well, I want to make sure that
statement was included.
THE COURT: Yes, let's get a clean copy, because the
one I have is marked up now.
MR. RENSCH: I have one here, I will give it to you
so that you have it.
THE COURT: This doesn't have the proffer agreement.
MR. RENSCH: No, the Exhibit.
MR. McMAHON: Why don't you keep my letter of the
proffer agreement. If I can just have my transcript.
THE COURT: I will attach the proffer agreement
letter and then there is a cover sheet, so then this will
become the Exhibit and you get your marked one back.
MR. McMAHON: Thank you.
THE COURT: Then I will give this to the clerk
ultimately. This will be a defense hearing Exhibit, and of
course one we don't send back to the jury. Alright, are we
ready to proceed?
(Exhibit F marked For identification.)
MR. RENSCH: Yes, Your Honor.
MR. MANDEL: Yes, Your Honor.