Testimony of Dr. Gary Peterson in the
Trial of Arlo Looking Cloud
February, 2004

THE COURT: You may step down. Call your next witness.

MR. McMAHON: Dr. Garry Peterson.

DR. GARRY PETERSON, called as a witness, being first duly sworn, testified and said as follows:

DIRECT EXAMINATION BY MR. McMAHON:

Q. Would you state your name, please?

A. Garry, G-A--R-R-Y, Peterson, P-E-T-E-R-S-O-N.

Q. Where do you live, Mr. Peterson?

A. I live in Minneapolis, Minnesota.

Q. Your occupation is what?

A. I am a physician, I am a doctor of medicine.

Q. Dr. Peterson, do you have a particular specialty?

A. I am a pathologist, and within that specialty I practice forensic pathology.

Q. Could you just give us a brief description of what forensic pathology is?

A. I can. Pathology, the larger field, is one of the medical specialties, and it has basically two subcategories; anatomic pathology and clinical pathology. Anatomic pathology deals with the study of disease, that's really what the word means, from actual anatomic inspection. So it involves areas such as performing autopsies, looking at surgical specimens under a microscope, those sorts of things where there is an actual anatomic either naked eye or microscopic examination for the most part. Clinical pathology is the laboratory area, and clinical pathologists usually head a hospital laboratory and serve as consultant to hospital physicians in ordering and interpretation of tests. Forensic pathology is a special area in pathology. The word forensic comes from the Latin word forum, which was the Roman courtroom. And the term is applied because forensic pathologists are often involved in clarifying medical or scientific questions that come up in the courtroom. Most pathologists work in a coroner's office or medical examiner's office and investigate sudden or unexpected death.

Q. Would you give the jury a brief review of your medical education?

A. I grew up in Minneapolis and went to Minneapolis public schools, and went to college at Hamlin University in St. Paul and University of Minnesota. After college I went to medical school at the University of Minnesota Medical School from 1965 to 1969. Following that I had a year as a rotating intern at St. Paul Ramsey Hospital, now called Regents Hospital, but it is the city-county hospital in St. Paul. Then I took three years of my five year pathology training at that hospital in clinical and anatomic pathology. The fourth year I took a year of forensic pathology at the Hennepin County medical examiners office in Minneapolis. That's the office that covers Minneapolis and the surrounding suburban areas. Then following that I had one more year of clinical and anatomic pathology at Hennepin County Medical Center, that's the city county medical center in Minneapolis. So I finished that training in 1975 and went in to practice in pathology in St. Paul. And for the first four years I was in practice I went to night law school at William Mitchell College of Law in St. Paul and finished that in 1979, and after that stopped taking formal college courses.

Q. Are you board certified?

A. I am board certified in clinical, anatomic, and forensic pathology, all three areas.

Q. Do you currently work?

A. I am the Hennepin County Medical Examiner, chief medical examiner of the county, and I am finishing what will be my fifth term, my fifth four year term. At the moment I am on leave without pay, but I still am the medical examiner and still administer the office, but in a budget solving movement I forwent my pay. So I am working, but not working full time as I was a few months ago.

Q. What is the medical examiner?

A. The medical examiner heads the office that is the successor to the coroner's office, Hennepin County once had a coroner's office. The office is charged with two major types of death investigations. Non-natural deaths, the accidents, suicides and homicides that take place in a community. And then the sudden unexpected deaths, or deaths where there is not a doctor in attendance who might be in a position to sign a death certificate. Just by way of example, in Hennepin County we have something in the range of 32 or 33 hundred cases reported to us. So investigating those cases, working with and supervising a team of doctors who work in the office and investigative personnel is basically what my career has become.

Q. Is one of the things that you do is to conduct autopsies?

A. Yes, it is.

Q. I am going to refer you back to 1976. Were you contacted to come to South Dakota to observe an autopsy?

A. I was, yes.

Q. Would you explain how that contact took place?

A. There is an attorney in St. Paul by the name of Kenneth Tilsen, and I had been involved in a case with him, I don't remember the specifics of it, and I suppose he knew me from that. But he called at one point and said would you be available to go to South Dakota and basically serve as an observer, there is going to be a second autopsy performed in a very significant or important case, and there would be an interest in having somebody just be there to observe and be able to comment on things. And I thought to myself it would be a very worthwhile thing to do. I was just done with my training and I thought, I didn't know who would be doing the second autopsy, but I assumed it would be someone, maybe someone even I knew, because it is a fairly small specialty nationally, a chance to observe and see how someone else did it, and to keep my eyes open and mouth shut was the way I was approaching it.

Q. Did you end up coming to South Dakota?

A. I did. I got a call I think on March loth of that year from Mr. Tilsen who said can you be on an airplane, it was just a matter of hours I had to get ready. So I got I guess some coverage at the hospital where I was working at the time, and came out here that evening.

Q. Did you go to the Pine Ridge hospital?

A. I did the following morning, yes, and went down to the hospital there.

Q. Instead of observing did you end up conducting the autopsy?

A. I did. I kept asking who was going to be arriving to do it, and after a short time I guess you are it, so I was the one who did it. I came expecting to observe, I ended up being the person doing the case.

Q. Tell me, that would have been on March 11, is that correct?

A. That's right.

Q. 1976?

A. Yes.

Q. What did you find on your initial exam of the body?

A. The body was fairly poorly preserved, there was a great deal of powdered preservative that was on the body. The deterioration was fairly substantial, and as I examined the body I asked to have some X-rays taken. In examining the body I noticed there was some seepage from the back of the head.

Q. What portion of the head?

A. Excuse me?

Q. What portion of the head was this?

A. It was showing in the back of the head, and I felt with my fingers on the side of the head, I felt something firm on the left temple area, and about that time the person I had do the X-rays came in and so X-rays were taken at that point.

Q. Were there any X-rays available from the first autopsy?

A. No, there were none.

Q. What did the X-rays reveal?

A. The X-rays revealed a metal projectile in the head area where I felt something.

(Exhibit 31 & 32 marked For identification.)

BY MR. McMAHON

Q. Dr. Peterson, I have handed you Exhibits 31 and 32. Can you identify those, please?

These appear to be the X-rays that were taken that day, or reproductions of them, and they do show the projectile.

MR. McMAHON I offer Exhibit 31, Your Honor.

MR. RENSCH: No objection.

THE COURT: Exhibit 31 is received.

MR. McMAHON: And 32.

MR. RENSCH: No objection.

THE COURT: Exhibits 31 and 32 are received.

BY MR. McMAHON

Q. Now Doctor, I have Exhibit 31 on the screen. Can you explain what we are looking at their?

A. This is a front view of the head, it shows basically the bones of the skull. On the right side of the X-ray, actually it's turned on its side, but would appear to be the right, actually the left side of the individual, is a bright white area, that is a projectile. It is lead, and as a result it doesn't allow X-ray beams to go through it so the film doesn't get exposed there, that's why it is white as opposed to being dark.

Q. I have drawn a circle around it, is that what you are talking about?

A. That's the item, yes.

Q. Was that a bullet?

A. Yes, it was.

Q. So that would have been located in the front left?

A. Right in the left temple area.

Q. Now I have put Exhibit 32?

A. And that is a side view. There is some jogging of the top of the skull, that's because it had been opened at the first autopsy. In the left temple area is another view, a side view of that same intense white object which is again the bullet.

Q. Is that the bullet?

A. That's it right there. You have to look carefully, because there is some white there from the bone, but the bullet is there. It gives I think a good depiction of where the bullet lay.

Q. Did you remove the bullet?

A. Yes, I did.

Q. What did do you with the bullet?

A. I gave it to an FBI agent, Mr. Wood.

(Exhibit 30 marked For identification.)

BY MR. McMAHON:

Q. Doctor, I have handed you what has been marked Exhibit 30, can you identify that, please?

A. That is a picture of the bullet that has the sequential number I used on my cases at that time, and of the scale that I used. So this is the, a photograph of that projectile.

Q. Is that a photograph that you took during the autopsy?

A. Yes, it is.

MR. McMAHON: Offer Exhibit 30, Your Honor.

MR. RENSCH: No objection, Your Honor.

THE COURT: Exhibit 30 is received.

BY MR. McMAHON:

Q. Doctor, when the X-rays were reviewed, is that the first time that you are aware that there was actually a bullet in the skull?

A. Well, I guess so. I felt something there, I didn't know

what it was. I waited for the X-rays before I came to the

conclusion that it was a bullet, I think.

Q. Were there any FBI agents present at that time?

A. There were two.

Q. Do you remember who they were?

A. It was Mr. Wood and I think it was Adams. I could check

my. Yes, Mr. Adams.

Q. What was their reaction?

A. They were astounded, and surprised, and very angry that

that was, that it had taken a second autopsy to find that.

Q. Had you reviewed Dr. Brown's autopsy?

A. It was not available at that time. I didn't see it until later.

Q. Have you since reviewed it?

A. I have, I have not seen it lately, or reviewed it lately.

Q. Did you notice what Dr. Brown had said about the cause of death?

A. Yes, I am aware of that.

Q. What was that?

A. He concluded the death was a result of exposure.

Q. Did you agree with that?

A. No, I did not.

Q. What was your conclusion as to the cause of death?

A. It was my conclusion that the cause of death was a

gunshot wound to the head.

Q. Did you also in reviewing Dr. Brown's report notice what

he said about the kidneys from the body?

A. Yes, he had given a weight to describe them. When I

examined the body, the kidneys were still in place, had not

been removed from the body.

Q. To weigh the kidneys you have to remove them?

A. Yes.

Q. So they had not been weighed?

A. They had not been weighed.

Q. You talked about the condition of the body. You are

aware, of course, that the hands had been severed at the first autopsy?

A. Yes, they were actually returned to me. I examined

them, and then they were basically rejoined with the body.

Q. Is removing the hands in a situation like this, was it a

recognized protocol back at that point in time?

A. It was. I think it was kind of the minority approach to

things, but it was done and I had seen it mentioned as a

technique in the teaching I had had at that time. It wasn't a

practiced I used, but it was recommended by some authorities

at that time.

Q. You mentioned that you had removed the bullet from the

skull, what did you do with the bullet?

A. I gave that to Investigator Wood.

Q. From your examination of the body, and I recognize that

it was quite some time before you actually examined it, but

can you give us any opinion as to how far away the gun would

have been from the head when the bullet was fired?

A. In a general way I can.

Q. What is your opinion?

A. It was very close. There was black gunshot residue that

surrounded the perforation that was in the back of the head.

Basically that point on the back of the head and a little bit

left of the center line there was gunshot residue. That only

travels a short distance from the gun barrel and was very

intensely deposited, so I would say the weapon was very, very

close, maybe touching the hair just a very short distance. To

know the specific distance you would have to test with that

weapon and similar ammunition, but we are talking just a very

short distance from the skin surface.

MR. McMAHON: Thank you, that's all I have, Your Honor.

THE COURT: Cross examine.

CROSS EXAMINATION BY MR. RENSCH:

Q. Morning, Doctor.

A. Good morning.

Q. What is livor mortise.

A. Livor mortise is the settling of blood that takes place

after circulation ceases and gravity will pull the blood to

one of the body surfaces, and it will settle and deposit there.

Q. You have looked at the bullet that you took out of

Ms. Pictou-Aquash's skull, did you not, sir?

A. I did look at it, yes.

Q. It had copper on it, didn't it?

A. It had a copper coloring, they call a flash. Wasn't

really a jacket around, but had some copper coloration to it.

Q. In the course of the autopsy you also examined the

vagina of Ms. Pictou-Aquash to take a look at it, did you not, sir?

A. I did look at the genitalia, yes.

Q. You noted the genitalia appeared normal?

A. They did to me, yes.

Q. You didn't find any other bullet holes or bullet wounds

on this body, did you, sir?

A. No, that was the only one.

MR. RENSCH: Nothing further, thank you.

THE COURT: Redirect.

MR. McMAHON: No further questions.

THE COURT: Thank you. Doctor, you may step down.


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