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UNITED STATES COURT OF FEDERAL CLAIMS

LAVETTA ELK, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

) ) ) ) ) Docket No. 05-186L ) ) ) )

Pages: Place: Date:

522 through 722 Rapid City, South Dakota April 30, 2008

HERITAGE REPORTING CORPORATION Official Reporters 1220 L Street, N.W., Suite 600 Washington, D.C. 20005-4018 (202) 628-4888 [email protected]

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS LAVETTA ELK, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) Docket No. 05-186L ) ) ) )

3rd Floor Courtroom U.S. Courthouse 519 9th Street Rapid City, South Dakota Wednesday, April 30, 2008 The above-entitled matter resumed for trial, pursuant to recess, at 9:00 a.m. BEFORE: HON. FRANCIS M. ALLEGRA Judge

APPEARANCES: For the Plaintiff: ADAM D. HOROWITZ, ESQ. Herman & Mermelstein, P.A. 18205 Biscayne Boulevard, Suite 2218 Miami, Florida 33160 (305) 931-2200 For the Defendant: STEVEN D. BRYANT, ESQ. SARA E. COSTELLO, ESQ. U.S. Department of Justice Environment & Natural Resources Division P.O. Box 663 Washington, D.C. 20044-0663 (202) 305-0424 LANNY ACOSTA, JR., ESQ. U.S. Army Legal Services Agency 901 North Stuart Street, Suite 400 Arlington, Virginia 22203 (703) 696-1636

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C O N T E N T S WITNESSES: For the Plaintiff: (None) For the Defendant: Robert Bennett Mark Mills 532 565 -549 631 665 -676 683 564 681 DIRECT CROSS REDIRECT VOIR RECROSS DIRE

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E X H I B I T S DEFENDANT'S EXHIBITS: DX-6B DX-6C DX-11 DX-22 DX-23

IDENTIFIED (previously) (previously) (previously) 529 710

RECEIVED 713 713 547 530 711

DESCRIPTION Medical records Medical records BIA incident report Cited excerpts from depositions 9C & 9D Cited excerpts from 6C

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P R O C E E D I N G S (9:00 a.m.) THE CLERK: The United States Court of Federal The Honorable Francis M. Allegra

Claims is now in session. presiding.

Please be seated. THE COURT: Good morning. We might have other

preliminary things, but let's first take up Defendant's motion to call this witness for impeachment purposes. The

key word in the rule that I'm not sure that, Mr. Bryant, you're focusing on is the word "exclusively." The rule

draws a distinction between rebuttal witnesses, if you look carefully, and impeachment witnesses. A rebuttal witness is a witness -- I'll give you Somebody testifies the car is red. Another That's a

witness comes up and says, No, the car is black. rebuttal witness.

It does have impeachment value, all

right, because it's indicating that the person's statement could be incorrect for a variety of reasons, one of which being lack of credibility. Okay? But it's not solely for

purposes of impeachment, not exclusively for impeachment, so that type of testimony would not come in. The only type of testimony that comes in under this rule is a situation where somebody said, I said to person A, X, and then you put person A on the stand who says, No, that person did not say that to me; they said,

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this.

Okay?

That's exclusively, okay, for impeachment, and

that type of testimony is the narrow band of situations that come in under this rule. All right?

I don't understand -- and maybe you can correct me if I'm wrong -- the nature of the testimony that you're talking about as involving a direct conversation or something like that -- stay seated; you can use the mike right there. MR. BRYANT: THE COURT: Yes, Your Honor. -- involving her having said

something that she said to this person and this person saying, No, I said something different. wrong? Go ahead. Am I getting this

Tell me some more about what this

person's testimony is going to be. MR. BRYANT: I think this is the exact situation

of what you just described, Your Honor, that -- and I should first point out that obviously Plaintiff's credibility in this case is an issue of paramount importance. THE COURT: Right. But that's not the point, you

can understand, from what I just described, so -MR. BRYANT: And this particular witness is going

to testify for probably less than five minutes, and it's to the exact point that she made on the stand that she was not notified of being disqualified during this MEPS examination. THE COURT: Right.

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MR. BRYANT:

This witness will testify that he's

the NCO in charge of this MEP station, and they notify every time that there is a disqualification. THE COURT: he notified her? MR. BRYANT: THE COURT: He is not going to testify to that. All right. Then the motion's denied. Did he -- is he going to testify that

Now, let me, by the way, cite you a couple cases, and I actually welcome the opportunity for this, because I think it's time that this be addressed in an opinion, because I think that the notion that you can just bring up for impeachment purposes any witness would effectively allow Defendant to call witnesses at will that are not on the list, and that's not the intent of the rule, and I'm going to make that very clear in any written opinion that I issue in the case. But if you want to go look at a couple of cases, as it turns out, while there's no interpretation of this rule as far as I know at our Court in a written opinion, there are opinions that deal with this at the circuit level that have the same rule and other local rules. All right.

So one is Sterkel versus Fruehauf Corp., 975 F.2d 528, 532, and that's an Eighth Circuit 1992 opinion. And, again, I'll

cite these back to you when the time comes in an opinion. The second one that I know of is a District Court

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opinion from the District of Maryland, and I don't know that I have that written down, but when the time comes. All right. But in any event, that's my It's consistent with those

interpretation of the rule.

opinions, and that's my ruling, so your motion -- what I'd suggest to you that you do is you go ahead and file electronically so it's actually on the docket of the Court, and I will reflect that I've denied it, and then I'll explain the basis of my denial in the opinion. MR. BRYANT: THE COURT: Yes, Your Honor. Okay. Anything else preliminary that

we need to take up, Mr. Horowitz? MR. HOROWITZ: THE COURT: I don't think so. Anything else preliminary

All right.

beyond what we just discussed, Mr. Bryant? MR. BRYANT: to DX-9C and 9D. Yes, Your Honor. And I'm referring

I confirmed with Plaintiff's counsel about

the portions of the transcript that they wanted to add to it. We've done so, and I can lay those out and read off the

page numbers if you want. THE COURT: ways, Mr. Bryant. of those pages? MR. BRYANT: from those exhibits. And we've removed everything else All right. Yes. Let's do it both

So you have a copy then for the reporter

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THE COURT:

Good, and does she already have that,

or do you need to hand that to her still? MR. BRYANT: THE COURT: She has that, Your Honor. Okay. So -- all right. And just for

clarification purposes, I think we're going to mark this as a different number so we don't have any confusion about what we did here. sequence? MR. BRYANT: THE COURT: That's correct, Your Honor. All right. So let's mark this then Am I right that 22 is the next one in your

(The document referred to was marked for identification as Defendant's Exhibit 22.) THE COURT: double-check. And, Mr. Horowitz, I just want to

You're okay with the references here? Yes. So DX-22 will be accepted

MR. HOROWITZ: THE COURT:

All right.

essentially into evidence, representing the pages that were reviewed with various witnesses. It's not just one witness.

It's a combination of what you did with the two depositions. Correct? MR. BRYANT: THE COURT: That's correct, Your Honor. All right. And as well as

accompanying provisions that were cited by Mr. Horowitz per

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the rule, just to identify them. (The document referred to, having been previously marked for identification as Defendant's Exhibit 22, was received in evidence.) THE COURT: And then I would appreciate it, Mr.

Bryant, if you would then just read right now the page numbers that are affected. MR. BRYANT: Okay. Referring to deposition of

Lavetta Elk, the page numbers are DEF -THE COURT: originally? MR. BRYANT: THE COURT: MR. BRYANT: Yes, Your Honor. All right. Go ahead. Just pause for a second. Is that 9C

DEF 1565, 1589 through 1591, 1593,

1623 through 1625, 1638 through 1639, 1668, 1790 through 1791. That's the extent of the pages from -THE COURT: Okay. All right. And then is there

pages from the second deposition? MR. BRYANT: That's correct, Your Honor. And

this is the deposition of Noretta High Hawk, and the pages from this -- which was previously DX-9D, and the pages from this document are DEF 1833, 1835, 1856, 1867 through 1869. THE COURT: Any comment on that, Mr. Horowitz?

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MR. HOROWITZ: THE COURT:

No. Then -- so thank you for

All right.

clarifying that, and so again DX-22 is admitted into evidence, and we have the page numbers there just to doublecheck if at some point we have a question. Anything else preliminary, Mr. Bryant? MR. BRYANT: THE COURT: move into your case? MR. BRYANT: MR. ACOSTA: Agent Robert Bennett. THE COURT: (Pause.) MR. BRYANT: Your Honor, may I be excused to make Very good. We are, Your Honor. Your Honor, Defense calls Special No, Your Honor. All right. Then are you prepared to

sure the sergeant -- tell him he can leave? THE COURT: Yes. Sure. Go ahead and do that.

ROBERT BENNETT having been first duly sworn, was called as a witness herein and was examined and testified as follows: THE COURT: THE WITNESS: THE COURT: Could I have you please take a seat. (Complying.) Sir, could you begin by stating your

full name and then please spelling it.

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THE WITNESS:

My name is Robert Bennett, R-O-B-E-

Last name is spelled B-E-N-N-E-T-T. THE COURT: MR. ACOSTA: Very good. Proceed.

Thank you, Your Honor.

DIRECT EXAMINATION BY MR. ACOSTA: Good morning, Agent Bennett. Good morning. What is your current occupation? I'm employed as a special agent for the Federal

Bureau of Investigation. Q A Q And how long have you been with the FBI? Over five years. And prior to working as an agent for the FBI,

what did you do before that? A For about two-and-a-half years, I was employed by

the United States Department of the Interior, Bureau of Indian Affairs, as a special agent. Q A And what did you do in that capacity? I worked out of Rapid City for the internal We would conduct reviews

affairs and inspections division.

of tribal and BIA police departments, jails and investigative divisions, and also when any of the U.S. reservations were short on criminal investigators, I would be sent on temporary duty assignments.

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Q A

And what did you do prior to working for the BIA? I was a Pennington County deputy sheriff in Rapid

City here for two years, as well as a Rapid City police officer for one year. Q A And what is your educational background? I earned a degree in government and a minor in I graduated

Native American studies from Dartmouth College.

in March of 1994, and I graduated from Rapid City Central High School here in 1989. Q A Q A Q So you're from Rapid City originally? Yes. And you are Lakota as well? Yes. I'm enrolled over in Rosebud. Can you review your police training,

In Rosebud.

starting at the very beginning, before you became a Rapid City police officer, I think you said was your first job. A Actually it was Pennington County deputy sheriff.

I was hired in November of 1997, and state law at the time required any new officer to attend the basic police certification for the state, so in -- if I remember correctly, it was March of 1998 I attended the state academy which was an eight-week program. And basically it was just

an indoctrination into state law, officer safety issues, firearms, and just how to become a basic police officer for the state.

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Q

And what formal training did you receive, have

you received since then? A I've attended numerous in-services, which range

from domestic violence training, crime scene investigation, interviewing techniques, and many others, as well as with the sheriff's office and then with the police department. And then when I left the police department to become a BIA agent, I had to go to Glencoe, Georgia, and attend the federal criminal investigator basic certification course to become a federal criminal investigator with the 1811 status attached to us. Q A And what type of officers attend that training? The class that I attended was comprised of tribal

and BIA investigators, people that were leaving patrol and going to become detectives or BIA investigators, as well as special agents for Department of Education, Social Security Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives sent their agents there, Secret Service. Pretty

much everybody except the FBI would send people there to become certified as federal criminal investigators. Q A Q And how long was that course? If I remember correctly, it was about ten weeks. And that was prior to your two-and-a-half years Correct?

with the BIA. A

Correct.

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Q A Q A

And when did you leave the BIA? I left the BIA in February of 2003. And where did you go to from there? I obtained employment as a special agent for the My reporting date for duty

Federal Bureau of Investigation.

was February 23 of 2003, and I reported to new agents training at Quantico, Virginia. Q A Q A Q A Q And how long did that new agents training last? At that time, it was 17 weeks. All in residence in Quantico? Yes. And you completed that training successfully? Yes. Have you had any training that focused on sexual Were any of

assault in the -- you described in-services. those focused on sexual assault? A Yes.

Part of the basic certification courses all

kind of dealt with that as a crime, and I can't quantify the number of hours, but I've had several trainings on speaking to people in incidents such as sexual assault. Q In the course of your career up until 2000, until

January 2003, how many sexual assault victims would you say you'd interviewed? A The best estimate I could give is probably around

40, give or take a little, maybe more, maybe less, but that

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would be a fair number. Q A And how many since then? Since then, probably another 60. I've probably

interviewed over a hundred people over the course of the past ten years. Q Okay. Taking you back now to January 2003, what

was your duty station at that time? A I was on temporary duty status on the Pine Ridge

Agency as a criminal investigator for the Bureau of Indian Affairs. Q Now, you mentioned earlier that you would do the

temporary duty status when the BIA was short agents. A Q A Q Correct. And was that the case at this time? That was the case there. Yes.

And on January 7, 2003, were you notified --

where were you that day? A I was in Pine Ridge, and we received notification

from the tribal police that an alleged sexual assault occurred, and the victim was at the Kyle Police Department. Q And do you remember about when you were notified

of the incident? A Q It was around one o'clock, 1:00 p.m. And how far is Pine Ridge where you were to Kyle

Police Department?

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A

I drove that countless times, but I don't know an It's probably around 40, 45 miles from Pine

exact mileage.

Ridge or 45 minutes, or depending on how fast you're going, maybe an hour drive. Q Do you remember when you arrived at the Kyle

Police Department? A It should have been right around 1:45 p.m.

Within an hour I was there from being notified. Q And when you arrived, were you directed -- what

did you do when you arrived? A I asked where the victim was and was led to the

tribal prosecutor's office where I conducted an interview. Q the office? A It was an office assigned to the tribal You said she was in an office. Can you describe

prosecutor, and I'm trying to figure out how bit the room was, but it's a standard office, probably 12 by 15. It had

a door, a desk, computer, just an office that you'd expect the tribal prosecutor to maintain. Q A Q A And was she located in that office? Yes. Was it a private room? Private in the sense that we could close the door

and talk one on one. Q Were you along in the room with her?

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A Q

Yes. When you first got to -- and when you say the Correct?

victim, you're talking about Ms. Lavetta Elk. A Q Yes.

How did she physically appear to you when you saw

A Q

Calm.

She was seated.

Calm.

Did you -- do you recall -- you were told that Did you conduct any physical

this was an assault. examination? A Q A Yes.

Can you describe what you did? During the course of the interview, I asked her

where she was touched and if she had any bruising or any markings, and what she described during the interview was touching through the clothing, and at one point she described a circumstance where the Army recruiter's hands went under her shirt and may have touched bare breast or did touch bare breast. But what caught my attention the most is there was a point where she said that her arm was grabbed and held about her head or above her head, so I asked permission to physically look at the place where she said she was grabbed, and I examined it from within, you know -- from my eyes to that part of her arm, within a foot.

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Q A

And what did you observe of that part of her arm? I noticed no noticeable injuries or impressions

or anything. Q If there had been any impression -- if there had

been any marks of any type, what would you have done? A Generally when we try to document injuries, you

would take a -- just a general photo, and then the next series of photos would have a scale, and when I say a scale, you'd place a ruler or something of a known dimension next to what could be a wound and photograph it. Q A Q But you did not at this time. Right. You said you were in a private room with her.

About how long did you interview her? A Q A Q A Q It lasted around 45 minutes. And were there any interruptions? No. Was there any time constraints on this interview? No. During the course of the interview, did you have

the chance to observe her demeanor? A Like I said, she was calm. She was responsive to

any questions that I asked. Q You say she was calm. Did she appear to have

been crying to you?

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A

Nothing noticeable in terms of puffy, red eyes or I mean, she could have been, but I

puffy skin under there. didn't notice. Q

There was nothing obvious.

If she had been, would you have noted -- put it

in your notes? A Q Sure. The same with the injury, if she had -- if you

had observed any physical injury on her, you mentioned you would have photographed it. your notes? A Q event? A The call came in as an Army recruiter -- I can't Yes. What were you told when you were called in on the Would you have also put it in

remember if they said raped or sexually assaulted an adult female. Q The female is located in Kyle. And upon arriving, what did you learn about what

you were told as far as the event? A Ms. Elk herself was on scene there at the police We were contacted,

department and made the initial report.

and the Army recruiter, Sergeant Kopf, was conducting other business elsewhere but believed to be on the reservation still. Q Okay. And what did Ms. Elk tell you during the

course of your interview?

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A

Basically that it was a non-intercourse, nonHis hands were He rubbed

penetration assault that involved groping. placed on her legs. her groin area.

He rubbed her inner thigh.

He was stopping the car, rubbing her, You know you want it; come on. And

having a conversation.

then at the same time, she was telling me how she was pushing him off. would stop again. He would stop. They would drive. He

And it was a series of six or seven

intervals such as that where he would stop, try to kiss her, try to touch her, drive, stop again, and this was all done on a back road up there behind Manderson. But specific question being, you know, did his clothes stay on; you know, did he penetrate you, penetrate. No. Clothes stayed on, but I had to fight him off, so the

nature of the incident was described as that. Q You mentioned that the touching of the legs and You mentioned that the

the groin area was -- strike that.

shirt -- there was touching, skin on skin contact under the shirt. Did she mention whether or not it was skin on skin

on the legs and in the groin area? A Specifically on her legs and groin area, it was It was his bare hand through the pants.

through the pants. Q

Do you recall anything else that she told you

during the course of the interview? A I asked her how specifically scared she was, and

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part of an interview technique that I learned to kind of quantify what was going on, I asked her specifically how scared were you, or how frightened or unfrightened you were, and on a scale of 1 to 10, to rate it for me, with 10 being completely afraid and 1 being completely unafraid. And she

quantified it for me with saying she was at about a level 6 or so. Q During the course of your interview with Ms. Elk,

did she ever mention any conversations that she had with Sergeant Kopf in the vehicle that day? A It was mainly just trying to tell him to stop.

At one point during one of the series of gropings, she mentioned to him something about, you know, was this -isn't this illegal. I do a lot of illegal things. And he

was trying to make light of it. things like that. incident.

You want it; come on,

But basically she just described the

We got into a history of her interaction with

Sergeant Kopf previous to that day of what happened. Q As far as the conversation that occurred in the

vehicle that day, did she mention anything that Kopf might have said about hiding a body? MR. HOROWITZ: THE COURT: Objection to hearsay.

That's very -- that's also leading,

so -- and the nature of the question is particularly problematic now, because now that you've asked that

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question, you've now directed him to an answer, so the evidentiary weight of what he's about to say here is not going to be very good. So rephrase the question.

BY MR. ACOSTA: Q Was there any other conversation that you recall

that Ms. Elk had with Sergeant Kopf in the vehicle that she mentioned to you? MR. HOROWITZ: THE COURT: Horowitz. Objection. Hearsay. It's an admission, Mr.

No, it's not.

Go look at the rules. BY MR. ACOSTA:

Q

Do you recall any other conversation that they

had in the vehicle that day? A Nothing -- it would be redundant if I said.

Pretty much what we had talked about and what I wrote was what we spoke of. Q I'm going to call your attention to -- if you

could -- in the binders next to you, there are -- I want to draw your attention to what's marked as Defendant's Exhibit 11. MR. ACOSTA: THE COURT: MR. ACOSTA: THE COURT: exhibit book before. Permission to approach, Your Honor. Let's see if he can find it. Okay. Something tells me he's seen an

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THE WITNESS:

BY MR. ACOSTA: Do you recognize that document? That's our -- well, at the time, that's the

Bureau of Indian Affairs incident report. MR. HOROWITZ: Your Honor, I object. This

document's not in evidence. THE COURT: 11's not in yet? Let me see. Is 11 in?

Can I verify with the reporter? THE REPORTER: THE COURT: it in at this point? MR. ACOSTA: THE COURT: Yes, Your Honor. Okay. No, it is not.

Okay.

Are you going to work to get

BY MR. ACOSTA: You were saying? This is the Bureau of Indian Affairs incident

report that at the time my employer made us file. Q Affairs? A Q Correct. And is this the report that you filled out that And your employer being the Bureau of Indian

It's a facsimile transmission of it, but it is --

it's -- I recognize it as my writing and what I wrote.

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Q

Could you go ahead and review from page DEF 0091

to DEF 0095 for me, please. A Q that day? A Q A Q Yes. Is this the report that you wrote that day? Yes. And when does it reflect that you -- does it (Perusing document.) I've looked at it.

Do those four pages constitute your report from

reflect when you wrote the report? A It's dated January 7, 2003, and the incident date

was January 7, 2003, so I began writing it later on on the day, on January 7, 2003. Q Was it your regular practice to write such

reports in the course of your duties? A Q Yes. And what would you do with the reports, once you

had completed them? A We had a filing system, an incident report

system, where our secretary would file them in there, and then regarding communicating with the United States Attorney's office, we would either send them a fax, or if they required a clean copy -- by clean copy, no fax numbers or anything like that attached to it -- either mail it to them, and then also send a copy to Aberdeen to the special

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agent in charge of the division, to let him know what is going on. Q You've looked at all four pages. Is this an

accurate copy of the report that you made that day? A Q Yes. And to your knowledge, the Bureau of Indian

Affairs maintains these reports? A Yes. MR. ACOSTA: Your Honor, Defense moves to have

Defense Exhibit 11 admitted into evidence. THE COURT: Yes, Mr. Horowitz. Your Honor, I have several One --

MR. HOROWITZ: objections.

A couple things. THE COURT:

Stay seated, now that I know you're Go ahead.

objecting, so you can stay by the mike. MR. HOROWITZ:

Several portions of the report are For instance, Second, there's a

contrary to the stipulation in place.

Sergeant Kopf's account of what occurred.

portion of the report reflecting decision or deliberations as to whether to prosecute criminally, not relevant. Third, if the proffer that was made was for purposes of a business record, I don't know that the Bureau of Indian Affairs is a business in the sense of the rule. THE COURT: It's actually covered by multiple

exceptions to the hearsay rule, another one involving public

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records, which involves the record of an investigation.

if you're going to object, why don't you deal with that one, too, then. MR. HOROWITZ: If they're trying to get it in

under public records, I don't think it's a public record. An account of a sexual assault is not a public record. It's

actually a confidential record that a public records request would not yield. THE COURT: That's not the definition of public,

so it's a record generated by a public office or an agency. It doesn't have to be made available to the public. MR. HOROWITZ: Well, again, the portions that

relate to the deliberations to charge criminally and Sergeant Kopf's account simply should not come into evidence. They're contrary to the stipulation. THE COURT: All right. Well, I will not read

this document in any fashion as contradicting anything that's in the stipulation. Subject to that limitation, it

seems to me it's covered by multiple exceptions to the hearsay rule, and therefore is admitted. (The document referred to, having been previously marked for identification as Defendant's Exhibit 11, was received in evidence.)

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BY MR. ACOSTA: You mentioned in response to one of my questions Can you

that she talked about their relationship prior. relate to the Court what she told you about that? A

She had spoken of being in his hotel room,

accompanying him outside the scope of her recruit status, driving around, being kissed once before in his hotel room in a small town of Martin, South Dakota, and just explained that they have had a more familiar relationship, I guess is just the general way to describe it, other than what happened on this particular day. Q Did she tell you anything -- that she did

anything about the incident that occurred, you said, in Martin? A I asked her about it, why didn't she report that You know,

one, and she just said she thought it was over.

he attempted to kiss her and talked to her in a sexual way, and she thought it was over. Q In the course of your interviews of victims of

sexual assault, do you normally ask them whether or not there was any threat of physical or bodily harm? A Q A Q Yes. Did you ask Ms. Elk that question? Yes. What did she say to you?

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A Q A

She said there were no threats of physical harm. Is that reflected in your report? Yes. MR. ACOSTA: THE COURT: Nothing further, Your Honor. Very good. Cross-examination.

CROSS-EXAMINATION BY MR. HOROWITZ: Q Did you go over your questions and answers with

counsel for the United States before testifying today? A Q A Q Yes. You knew what they were going to ask you? Yes. And you knew -- you told them how you were going

to answer the questions? A I didn't tell them how I was going to answer. They might be a little different today. How did you go about recording your I

answered them. Q Okay.

interview with Ms. Elk? A Q I take notes -- or I took notes. How did you go about electronically recording

your interview with Ms. Elk? A Q In this incident, we did not. Okay. Is that your training, not to record an

account of a sexual abuse? A It's a decision made out in the field. It's --

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you can do it or you can't. Q A Q decision? A Q No, I didn't. Okay. You indicated that you started That was a decision you made? That was the decision that was made that day. You didn't consult with anyone before making that

interviewing with Lavetta at approximately 1:45 p.m. A Q Right. Okay. Now, you weren't the first law enforcement Correct?

member to speak with her. A Q Correct.

And she had met with numerous members of her

family before you met with her? A family. Q When you arrived, were several members of her I don't know for sure who she met with in her

family at the police station? A Q They could have been. Did you ask her to give you a calm and collected

account of the events? A Q I asked her to tell me what happened. Okay. Yes.

Did you want her to be hysterical, crying,

or was it easier for you to hear her accounts once she had calmed down?

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A out calmly. Q arrived? A Q

I asked her to tell me what happened, and it came

Okay.

Did you ask her to calm down when you

No. Okay. And in your experience, is it easier to

take down a statement when someone's calm, than opposed to when someone's hysterical? A Q Yes. Okay. It's easy. I just want to be clear. You indicated Have you

that Lavetta might have had her breasts touched.

had opportunity to review your report, the one in front of you? A Q clarify. Oh, she told me her breasts were touched. Okay. And then you hesitated. I just wanted to

Her breasts were touched.

She reported to you

that her breasts were touched, skin to skin. A Q Correct. Okay. And she reported to you that her groin Correct?

area was fondled. A Q Correct. Okay.

And she reported to you that Sergeant Kopf Correct?

also kissed her. A Q Yes. Okay.

And all of these acts she reported to you

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were against her will. A Q Yes. And they were -- he continued to do these acts

after she pushed him away. A Q Yes. Okay. And you didn't find any of that to be an

expressed or implied threat to her bodily integrity? A Q Inherently it is. Okay. Yes.

So she described an inherent threat to her Correct?

bodily integrity. A Q Sure. Okay.

You don't dispute that all of these acts Correct? Yes.

were contrary to what she wanted to have happen. A Q

She said she did not want them to happen. Okay.

Did she describe the situation in which

Sergeant Kopf had his way with her? A Q A On this particular day or a different -Yes. I'm not sure I -- can you ask the question again,

please, sir? Q Did she describe a situation in which Sergeant

Kopf was doing things that she did not want to happen to her? A Yes. She was describing a general situation like that.

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Q A

A general situation or a specific sexual assault? There were a series of, according to her

statement, six or seven times where he stopped and did this, so -Q You indicated that there were -- strike that.

When yo were interview Lavetta, how did she refer to Sergeant Kopf? A Q Sergeant Kopf. She didn't call him Joseph. She didn't call him

A

Recalling what I wrote down, I asked her how she

refers to Sergeant Kopf, and she said, Sergeant Kopf. Q Okay. And did she tell you that each time she

pushed away, he came back at her? A Q Yes. There was a series of that. Yes.

You list the location of the incident as a back

road in Manderson, South Dakota. A Q A Q A Q Correct. Are you familiar with that location? Not completely familiar. What's the name of that road? I believe she said it was Gooseneck Road. You believe the assault was on Gooseneck Road or

a trail off of Gooseneck Road? A It was in the back area there.

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Q A Q

Okay.

You're not quite certain where it is or -I didn't.

I did not go to the physical location.

Pine Ridge Indian Reservation, you're familiar

with the general location? A Q A Q Sure. Pretty barren, remote reservation. Yes. Would you agree that this is an even more barren, Correct?

remote location than the rest of the reservation? A and it's -Q This location that she described, any housing I can't answer that. It's on the reservation,

developments, housing projects? A Q Falls. A Q A Q A Q A Q A It's out of the way. Okay. Correct? No. You wouldn't take it to Kyle? You could take it to Kyle. It's not the shortest route to Kyle. It's not a main route. No. Correct? Yes.

You wouldn't take that road to Sioux

Is it the shortest route to Manderson? Depending on where you're coming from. Okay. Well, let's -It's not a paved road.

It's not a main route.

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It's not anything like that. Q And if you're -- are you familiar with where the

Elks live in Wounded Knee? A Q No. Okay. If you're traveling from Wounded Knee, is

that a main road you would take to Manderson? A Q I don't know. You mentioned that Lavetta reported to you that Is that

she had some prior episodes with Sergeant Kopf. correct? A Q That's correct. Okay.

You're not suggesting that Lavetta

initiated any of those contacts, are you? A Q A told us. Q Okay. And her accounts of those incidents No. Okay. No. She didn't report that to you? She told of other incidents, is what she

involved similar episodes in which she told him to stop. A Q Correct. Okay. And the difference being in those

incidents, he did stop, and in this instance, he did not. Correct? A Q Yes. How many weeks of CI school training did you go

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to? A Q It was ten weeks. Okay. How much of that CI school pertains to Any of it?

investigations of sexual assaults? A

There are probably, during the interview portion, It may be a couple of

you know, several hours of the day. days of training. Q school. A

You received actual sexual assault training in CI

There are basic reviews of what to expect during It's part of the training,

sexual assault investigations.

and I'd have difficulty quantifying how many hours, how many days, but it's part of what we learn. Q Lavetta had just turned 19 just a few weeks Correct?

before this assault. A

I'm not sure when her birthday is, but she was 19 Yes.

at the time of the incident. Q room? A Q No.

Did you ask her if she wanted other people in the

Did you speak with other officers who had

investigated the incident before you arrived? A I spoke with an officer there, just to get a

little brief and ask where she was located, and then I was directed to her.

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Q

And did you ask him how she was emotionally when

he interviewed her? A Q No. Okay. You have no idea if she was hysterically

crying moments before you walked in the room? A Right. MR. HOROWITZ: THE COURT: MR. ACOSTA: THE COURT: Okay. No further questions.

Redirect. Nothing. Special Agent, in a process that I've

used for some other witnesses, I have some questions for you. THE WITNESS: THE COURT: Sure. Once I'm done asking those questions,

I'll give both the Government and the Plaintiff an opportunity to follow up in case I break any new ground. I just want to get an understanding of just a couple of points actually of the ones that you made. think I heard you indicate that you did not go to the physical location where the assault occurred. THE WITNESS: THE COURT: Correct. That, I guess, strikes me as odd. Correct? So I

Why would you not go to the location, to see what the location looked like, to see if there was anything there that might have indicated -- that would have corroborated

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the story, that would have -- you know, whether or not something was left at the site that might have corroborated that they were? How come no physical examination? When I finished the interview with

THE WITNESS:

Ms. Elk, I was informed that Sergeant Kopf was at her residence, and the tribal police had him detained, if you will. So I made a direct route to his location, to conduct

an interview with him. THE COURT: Why at some point after that would

you not have gone to see the physical location? THE WITNESS: I spoke with the criminal chief

assigned to the United States Attorney's office here, the criminal chief who decides whether or not something gets prosecuted. I spoke with him earlier in the day, before I

spoke to Ms. Elk, spoke to him after the interview, and said, I've got the alleged subject or I've got Sergeant Kopf detained by tribal police. back. Upon speaking to Sergeant Kopf, I called Mr. Mandel, briefed him on her statement and his statement, and he declined to prosecute -MR. HOROWITZ: THE COURT: Objection, Your Honor. Talk to him, and then call me

Pause. I just objected to Mr. Mandel's

MR. HOROWITZ: decision.

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THE COURT:

Well, it seems to me that he's

responding to my question, and I think it's relevant, so go ahead. Continue, please. THE WITNESS: I briefed Mr. Mandel about what had

occurred, and immediately he made the decision to not prosecute it federally in this jurisdiction here, but refer it to the Army for any action that the Army deemed appropriate. THE COURT: Uh-huh. The -- is it normally the

case when you investigate sexual assaults that you don't go to the location of the alleged assault? THE WITNESS: would want to do. THE COURT: And wouldn't you think that that Not usually. That's something you

would be evidence that you'd want to factor into any determination of whether or not to prosecute? THE WITNESS: What was going on in my mind at the

time and after consulting with Mr. Mandel is that the location would not -- that wasn't in dispute. yes, something happened. I told him,

And it was -- at that time, with

the case being declined federally, write it up and forward it on. But basically -- I'm sorry. THE COURT: Would location have any impact on any I mean, if you were

of the potential elements to a crime?

in a threatening location as opposed to a place that was

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less threatening, does that have an impact in terms of proof, isolated areas versus areas that are well trafficked? What about the -One of the things, I guess, I'm wondering about, too, is that if somebody is forcibly moved to an area where they do not want to be, I'm wondering whether or not other federal crimes are at issue, beyond sexual assault. Kidnapping is one that comes to mind. THE WITNESS: When you're referring to

kidnapping, I don't think this was -- it didn't rise to that level. With her getting into his car around her residence

and going on a ride -THE COURT: So once somebody gets into a car, no

matter where the person takes them, you can't have a kidnapping charge. Is that what you're saying? In this case, the thought or the

THE WITNESS:

idea of kidnapping never came into my mind. THE COURT: Do you always, as part of the

interview process, ask the witness on a scale of 1 to 10, how -- what was the phrase? -- frightened you were? THE WITNESS: Completely afraid or totally --

totally afraid or completely unafraid. THE COURT: Is that standard in your practice for

a sexual assault interview? THE WITNESS: It's a question where I think would

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get at what you would want to know, her level of fear; did he make any specific threats, or how afraid were you -THE COURT: things. Well, I understand those other Is that a question

I'm wondering about the scale.

you ask as sort of a standard practice in a sexual assault investigation? THE WITNESS: It's not in every interview, but

during the interview this date, that's how it was phrased. THE COURT: What element, I guess, of a crime

does that particular question relate to? THE WITNESS: do that. Level of fear, any overt threats to

There are specific statutes that deal with threat

of physical harm as opposed to direct physical harm that add credence to the statute or corroborate, you know, charging someone out with a more severe sexual assault crime. THE COURT: But, of course, there's a subjective

element, of course, to perception of fear, and there's a subjective element to the perception of the scale. THE WITNESS: subjectiveness. THE COURT: So I would assume that with that Correct. Yes. Correct?

There's a lot of

scale and if you've used it in other situations, that you've seen somewhat different fact patterns with people coming up with numbers that if you stacked them up, once against the other, you'd say, Well, gee, I'm not getting numbers here

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that are absolutely consistent. In other words, it's not -- if you understand the question I'm asking you, there's a subjective aspect to that scale, in that one person might experience a particular event and asked to deal with that scale, they'd say it was an 8. Another person might experience the exact same event

and say it was a 6, and somebody else might experience a much worse event, you know, and say it's a 6. THE WITNESS: THE COURT: of the -THE WITNESS: THE COURT: THE WITNESS: THE COURT: Yes. -- in terms of the scale? Yes. All right. So basically it isn't an Sure. Do you see that variability in terms

absolute measure of fear, at least from an objective standpoint. Is that correct? THE WITNESS: absolute about it. THE COURT: All right. And so it's not meant to It's more just asking this No. There would be nothing

be an objective measure of fear.

person subjectively what they felt. THE WITNESS: put a number to it? THE COURT: All right. And so would it, in your Yes. How did you feel? Can you

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view -- I mean, if it was used, for example, to counteract an element of the crime, in your view does that perception of the witness necessarily counteract the notion that the person might have felt threatened? I mean, if they come in

at a 6, is that still in your view consistent with them being threatened? THE WITNESS: Yes. And then you've got to I mean, there's other

quantify threatened also, too. perceptions of that. THE COURT:

All right.

But if you were talking

about whether or not a person who said 6 on that scale felt threatened, your conclusion is that would be consistent with that. THE WITNESS: THE COURT: Yes. And so are we talking about matters

of degree here to a certain extent? THE WITNESS: THE COURT: To a certain extent, yes. Variability from person to person,

the same person might describe the exact same events and come up with a different number on the scale. THE WITNESS: THE COURT: Right. Okay. All right. That's all I have.

Any type of further questions from Mr. Acosta? MR. ACOSTA: THE COURT: No, Your Honor. Anything, Mr. Horowitz?

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q assault. A clothed. Q

MR. HOROWITZ:

RECROSS-EXAMINATION BY MR. HOROWITZ: Lavetta was wearing a sweater on the day of her Correct? I can't recall. I know she had -- I know she was

I can't recall what it was. Did you ask her to remove any clothing to inspect

her physically? A I think I -- if she -- if it were a long-sleeved

shirt, I would have asked her to pull it up to look at where she said she was grabbed. Q A Q A Up to her elbow? At least up to there. Yes.

You didn't ask her to remove any clothing? No. MR. HOROWITZ: THE COURT: MR. ACOSTA: THE COURT: No further questions. Anything else?

All right.

Nothing, Your Honor. Okay. You're excused with the thanks

of the Court. THE WITNESS: Thank you, sir.

(Whereupon, the witness was excused.) THE COURT: MR. BRYANT: Next witness, please, Mr. Bryant. The United States calls Dr. Mark

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Mills. Whereupon, MARK MILLS having been first duly sworn, was called as a witness herein and was examined and testified as follows: THE COURT: THE WITNESS: THE COURT: Could I have you please take a seat. Of course. Thank you.

And could you begin by stating your

name for the record, and then please spell it. THE WITNESS: M-I-L-L-S. THE COURT: MR. ACOSTA: in the courtroom. Proceed, Mr. Bryant. I apologize. Agent Bennett is still Sure. It's Mark, M-A-R-K, Mills,

Is that -No. Actually it's not. No, it's

THE COURT:

actually not, because there's some potential he could get called as a rebuttal witness. MR. ACOSTA: THE COURT: Understood. Thank you for alerting me. DIRECT EXAMINATION BY MR. BRYANT: Q A Q Good morning, Dr. Mills. Good morning, Mr. Bryant. I'd first like to discuss what your current

position is, your occupation.

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A

Oh, I'm a psychiatrist and forensic psychiatrist,

mostly practicing as a forensic psychiatrist in Washington, D.C., and I'm a professor, full professor of clinical psychiatry at the Columbia University in New York, and I'm an adjunct professor of psychiatry at New York Medical College, St. Vincent's Hospital, also in New York. THE COURT: And, Doctor, if I could ask you, as

you're about to guess, I need you to stay a little bit closer to that microphone. THE WITNESS: tough in this room. I'll do my best, Your Honor. It's

I don't know quite what it is.

BY MR. BRYANT: Q A Q A Q A And are you self-employed? Yes. And how long have you been self-employed? Twenty-one years. And what do you do as a forensic psychiatrist? Primarily I consult to attorneys in lawsuits that That can

raise mental state issues of some kind or other.

be psychological distress or damages issues, such as in the present case. It can be insanity, competency to stand

trial, competency for some particular capacity, like testamentary capacity, competency to be executed, a wide variety of issues that -- where mental states are relevant in the law, both civilly and criminally.

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Q

And with respect to Columbia University, what are

you a professor of at that -A I'm a professor of psychiatry, and they --

Columbia breaks it down into research psychiatry and clinical psychiatry. psychiatry. Q A Q A Q A And how long have you done that? About five, six years now. And you mentioned New York Medical College. Yes. Can you tell me what you do there? I really do the same thing. I teach residents I'm a professor of clinical

and fellows on an occasional basis. Q A resident. Q A And how long have you been teaching? Well, I've been teaching since I was a chief That goes back to 1977. And what is your educational background? University of California, Berkeley,

undergraduate; Harvard Law School, law degree 1970; back to Berkeley for a year of pre-medical education; and then Stanford University School of Medicine, graduating 1975. Q And can you briefly discuss some of the high

points in terms of where you've taught over the years, other than the ones we've mentioned? A Sure. I mean, very briefly, I started off as an

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assistant professor at Stanford in the department of psychiatry. I was also an adjunct professor -- adjunct

assistant professor on year at the law school at Stanford. I then moved to the Harvard faculty. I was an instructor

and assistant professor in psychiatry and an adjunct professor at the law school and co-taught a course with Alan Dershowitz in criminal law. I then moved back to California to UCLA where I was first an associate professor and then full professor in the department of psychiatry and bio-behavioral sciences, kind of a cumbersome term, but psychiatry basically. Q Well, you must be honored to have been a

professor at so many fine institutions. A Well, it's a nice thing to say. I'm not sure,

you know, it's terribly relevant here, but I've been fortunate to have had some very intriguing positions. Q A And are you board certified in -Yes. I'm board certified both in psychiatry,

1982, I believe, and in forensic psychiatry, 1983. Q And what is the significance of board

certification? A Well, it's the profession's imprimatur of It's an acknowledgment that one has

confidence essentially.

been rigorously evaluated by one's peers, and that one's work and qualifications have been found at least adequate.

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Q

Your curriculum vitae -- and that's DX-1, page

DEF 1172 -- if you could pull that for me for a moment -through 1197. A Q A Q A Q A Q A Q I will -If you need some help, please let me know. DX-1? Is that the one? And it's --

That's correct.

I assume it's in that. Your CV follows the report. Got it. Thank you. Is that correct?

And this is a 26-page CV. Yes.

It mentions on page DEF 1173 through 1174 a Can you identify any in

number of hospital appointments.

particular that would be relevant to your testimony today? A Yes. From '83 through '87, I was the chief of

psychiatry for the West Los Angeles Veterans Administration Medical Center. At that point, the West LA VA was the

largest psychiatric hospital in North American, that is, larger than any other institution in Canada, the United States or Mexico. We had about 450 in-patient beds and did

more than 200,000 outpatient visits per year, and I had about 100-plus psychiatrists reporting to me. It's important, because obviously in that era, we were serving World War I veterans, a few; World War II

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veterans, many; Korean War veterans, quite a few; and a number of Vietnam War veterans, and it was really in that group that we saw the rise of and the sort of definition of post traumatic stress disorder. So I have seen scores,

probably literally hundreds of veterans with PTSD during my time at the VA. Q position? A Well, a hundred-plus psychiatrists and then, you And how many people did you supervise in that

know, obviously, derivatively the entire work of clinical psychiatry. Q There's also a section referring to, on the same

page, DEF 1174, of board certification, fellowships, awards and grants. given? A Well, I mean, look, I mentioned the two board I think at the other end of that Can you tell me what they are and why they're

certifications.

enumeration in 1986 and now 20-plus years ago, I was named a distinguished fellow by the American Psychiatric Association. That's an honor that most psychiatrists don't

receive, and again it's very flattering, but my colleagues have recognized my work as, you know, substantial. that's a nice word. Q 1175. And with respect to editorial boards, it's on DEF Can you tell me how you were selected for those I guess

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positions? A Well, again, because I have written extensively,

I have authored articles in monographs and in treatises, and because of my knowledge of forensic issues, I was often and still am asked to review articles that have either direct forensic topics incorporated within them or have forensic implications. Q And in that position or in other positions, have

you had the opportunity to be involved in refereeing potential publications? A Q A Again, hundreds probably, but certainly scores. And can you tell me what that process is about? Well, it's about really two things: one,

deciding whether or not a particular article or paper merits publication in terms of the topic presented, in terms of the utility of the information presented. And then, two, it's

about whether or not the statistics and the information is methodologically rigorous. process. So it really is a twofold

Is this interesting, and is this done well enough

to merit publication? Q So I gather that means there's sort of

scrutinizing process of the publication to ensure that it meets the standards? A That's right. I mean, I would say that most

demanding journals, the American Journal of Psychiatry, the

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Archives of General Psychiatry, for example, probably publish something like one paper that they receive in eight or in ten, so most papers are rejected, and even those that ultimately are published are often revised once or twice prior to publication. Q And have you had any publications of your own in

referee journals? A Q A Q A Q Yes. I mean, in my CV -Does that --

Is that from DEF 1177 to 1180? That's right.

I think it enumerates --

Forty-nine is my --- some 49 referee publications. Is there anything, any publications within those

49 that are specifically relevant to this case that you recall? A Well, we'll come to my opinions in this case, but

certainly one of the opinions I've -- perhaps the ultimate opinion is that Ms. Elk is not a reliable witness. One of

the bases for that opinion has to do with the psychological testing results that she produced both for me and for Dr. Manlove, and one of the reasons I'm familiar with such testing is I've written an article about a test for malingering that was published in the American Journal of Psychiatry, so the topic of malingering has been of interest to me for several decades now.

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Q

And what is another term or description of what

malingering? A Well, malingering is faking or elaborating for In a criminal matter, it can be the gain of less

sentence or no sentence or of serving one's sentence in a psychiatric hospital which probably is more pleasant than a prison. In a civil case, it can be -- the gain can be one

of increased damages or some additional kind of potential benefit. Q And are you referring to number 31 on your Is that the --

referee publications, which is on DEF 1179? A Q That's correct.

And have you been involved in analysis of

malingering and studying that topic over the decades of your career? A Yes. I mean, since that article was written, I

have been interested in malingering and in sort of, you know, how you do forensic assessment in a way to adduce data that's useful to the Court and to the attorneys, and I have written, the CV also reveals, in The Comprehensive Textbook of Psychiatry the chapter for the current edition and the two prior editions on malingering, and continue to find the whole approach of forensic psychiatry something worthy of discussion and careful thought. Q And you mentioned The Comprehensive Textbook of

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Psychiatry. A

Well, it came up briefly yesterday in Dr. It is one of two major English

Manlove's cross-examination.

language, American English language texts in psychiatry. The other is the American Psychiatric Association's Textbook of Psychiatry. The comprehensive textbook is the older and

more voluminous, that is, the more detailed text, and is revised about every five years. The American Psychiatric

Textbook is more recent, somewhat shorter, and is revised on about that same schedule. I guess there have only been

about four editions of it versus the eighth of the Comprehensive Textbook. Q And of those eight editions, I believe you said

you offered the malingering chapter in three of those? A Q moment -A Q Sure. Got it. In the three most recent ones. That's right.

And if you could turn to DEF 1182, just for a

The most recent edition of that, the chapter you Is that correct?

wrote, is that number 83? A Yes.

It's the Comprehensive Textbook of

Psychiatry, and it's the eighth edition, written in 2005. Q Your curriculum vitae also indicates 200-plus Can you tell me what those are about?

presentations. A

Well, when you're presenting something away fro