Free Memorandum of Contentions of Fact and Law - District Court of Federal Claims - federal

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el k(1). TXT 1 1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS 2 3 4 5 6 7 8 9 10 11 12 13 14 APPEARANCES: 15 16 17 18 19 20 21 22 23 24 25 RAPID REPORTING (605) 343-0066 Representing the Defendant: Representing the Plaintiff: ADAM HOROWITZ Herman & Mermelstein 18205 Biscayne Boulevard suite 2218 Miami, FL 33160 KEVIN WEBB SARA E. CULLEY united States Department of Justice PO BOX 663 Washington, D.C. DATE: PLACE: BEFORE: VS. THE UNITED STATES OF AMERICA, Defendant. LAVETTA ELK, Plaintiff,

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05-186L

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Deposition of: LAVETTA ELK

Jean M. Carlson Court Reporter and Notary Public Rapid City, south Dakota December 12, 2006; 9:30 - 2:50 p.m. 201 Federal Building 515 Ninth St. Rapid city, South Dakota

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el k(1) .TXT 2 3 WITNESS : 4 Lavetta Elk 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RAPID REPORTING (605) 343-0066 EXHIBITS: 1 Notice 2 Subpoena 3 Answers to Interrogatories 4 Answers to First Set of Interrogatories MARKED ON PAGE 7 8 46 64 Examination by Ms. culley PAG E

LAVETTA ELK, called as a witness, being first duly sworn, testified as fol lows : MR. HOROWITZ: Lavetta, you need to answer all the Page 2

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elk(Z) (2) .TXT 25 I wouldn't talk to anybody else. RAPID REPORTING (605) 343-0066 21 i 2 3 4 5 6 7 8 9 I0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Q A Q Q You wouldn't talk to anyone else but sergeant Kopf? A Yes. Q what made you interested in joining the Army?
A

Like I said, I had a lot of family members that were in the military, and none of them were female, so I would have been the first. Did you see Sergeant Kopf in any social settings?

A social setti ngs as i n-Q Did you go to the movies with sergeant Kopf? A He asked a few times, but I refused. Q A Did you see Sergeant Kopf at a volleyball game? Yes, for Lakota Nation Invitationals, he watched a few of my games. Did you talk to him at these games? Yeah. NOticing that he was there, he waved me over, so I went over to talk to him. Q what did you talk about? A He told me that he had other people, a lot of people invited him to go see their matches, but he said he heard they were playing, so he tried to make every game. Did you enjoy seeing Sergeant Kopf? MR. HOROWITZ: object to the form. I really wouldn't call it enjoying, seeing him. It would be just like seeing a person along the way. It's not like -- I didn't look forward to seeing him. RAPID REPORTING (605) 343-0066 Page 19

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elk(1).TXT 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Q A A Q
A

Yes. what happened next after you were driving in the car? We drove towards Manderson and he pulled onto this dirt road called white Horse creek. And it's a dirt road where there's people that lived like a mile down. And I didn't think nothing of it, because I had a friend that lived down that way. Had you been on that road before? Yeah. Like I said, I have a friend that lived down that way. And what happened next? He drove past all the houses, and I was telling him, I didn't think anybody lived that far out. And he's like, RAPID REPORTING (605) 343-0066 59

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Q A

no, they live this far out; I've been down road before. And I was pretty much quiet. I didn't know what to think. He would ask me questions, like he asked me, if somebody hid a body out here, how long do you think it would take them to find it, or do you think they would find it. I didn't know what to think. what happened next? There is another dirt road connecting with the dirt road we were already on, and he turned on it, and I was telling him, I don't think anybody lives out here, but he kept driving and he drove about a couple hundred yards off the main dirt road, and he parked behind this big hill. How long had you been driving at that point? Couple miles from the main road from Manderson. Page 53

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el k(1). TXT 16 17 18 19 20 21 22 23 24 25 Q A Q A A Q And from the time you left your house ,until you arrived behind that hill, do you remember how long it was? No. I know it takes 10 minutes to get to Manderson from wounded Knee. Did you ask why you stopped? I asked what he was doing, and he said he wanted to get a chance to talk to me. And did you talk at that point? Yeah. He asked me if I was still arguing with my dad. He said he noticed I was sad lately. He said he wanted RAPID REPORTING (605) 343-0066 6O 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Q A tO know what he could do to help make it better. Did you say anything to sergeant Kopf? I just told him, I don't know what I can do to make it better. He tried to grab my hand, and he said he wanted to take care of me. Q what did you do when he grabbed your hand? A I pulled away. I got mad. I asked him what he was doing. Q what did he say? A He asked me if I liked him. He was telling me that he felt I was the only one that understood him and said that I made him happy, so he wanted to make me happy. And he leaned over and tried to put his arm around me and he said he wanted to take care of me. Q what happened next? A He was leaning on me, and he was trying to kiss me, so I was pushing him away and telling him to stop, and he was saying; come on, I thought you liked me. Page 54

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elk(1).TXT 19 20 21 22 23 24 25 A Q Q A Did he stop? No, he started pulling at my sweater, and he was rubbing his hand up between my legs, and he was pulling at my pants. can you tell me what parts of your body that sergeant Kopf touched? He was pulling at my legs and he was touching me between RAPID REPORTING (605) 343-0066 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 A Q A Q A Q A Q A Q A Q my legs, and his hand went up my shirt and he was grabbing my breasts, and he was licking me, and he was tugging on my ear, and his hand went under my shirt. I was pushing him away, but he grabbed my hand and he put it behind my head, and he leaned on me, and I pulled for the door handle, but the door was locked. I was pushing him away and telling him to stop, but he just said that I was feisty, and he liked it. Did your clothes stay on during this? He unbuttoned my pants, and he was pulling at it. were any of your clothes torn? NO, Lavetta, help yourself to the Kleenex, if you want. Did you have any marks on your body? No. Any bruises? NO. Any scratches? NO. Did you touch Sergeant Kopf?
I was

pushing him away. Page 55

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el k(1). TXT 22 23 24 25 Q Q A Did Sergeant Kopf stop touching you? Yeah. when I started crying. He sat back in his seat and he said he thought it was what I wanted he. where was Sergeant Kopf sitting at? RAPID REPORTING (605) 343-0066 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q Q A Q A A A A He was sitting right next to me. Q was he in the driver's seat? A Yes. Did he ever move out of the driver's seat? Yeah. He climbed on his knees and he was leaning over me. Q was there a divider between the seats in the suburban? A I'm not sure. I think there might have been one, but I think it was pushed up, because he was leaning right on me. How long did this encounter in the suburban last? I don't know. It seemed like forever.

Q what clothing were you wearing that day? A I was wearing a pair of pants and a sweater, and I had a shirt under my sweater. Do your pants have a zipper? Yes. Did your sweater have any buttons? No. It was a pullover.

Q what happened next? A He sat back in his seat, and he said he thought it was what I wanted. And what happened after that?

A I was crying, and I told him what he was doing was Page 56

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el k (1). TXT 25 wrong. He asked me how it was wrong, so I told him that RAPID REPORTING (605) 343-0066 63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 A Q A Q Q Q A it was wrong because he was my recruiter, because he was married, and he had kids. And he said, oh, that don't matter, I'm going through a divorce anyway. Did you talk about anything else? He told me he could get me anything I wanted in the military. He said his job was to get people what they wanted, and he said it didn't matter if he altered paperwork or lied. Q what happened next? A I told him I didn't care, I just wanted to go home. Q Did Sergeant Kopf ever threaten to harm you? A Not outright. Q can you explain your answer? A Like I said, he mentioned if somebody were to hide a body out there, and I didn't know what to think, because we were way in the middle of nowhere. By this encounter did you suffer any physical harm? MR. HOROWITZ: I object as to form. A what do you mean by physical? were any parts of your body hurt by Sergeant Kopf? My whole body hurt. Can you tell me what that means? I mean -- nobody imagines to be touched like that. Did Sergeant Kopf's touching leave any marks on your body at all? RAPID REPORTING (605) 343-0066 Page 57

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el k(1) .TXT 64 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 A Q A Q Q A A No, not physical.

Q NO bruises, red marks or scratches? A (Nodding negatively). Q
On

a scale of one to ten, could you tell me how afraid

you were with ten being the most afraid? MR. HOROWITZ: object as to form. I was in shock. I didn't know what to think. I didn't know if he was going to leave me out there. I couldn't move. Could you put it on the one-to-ten scale? MR. HOROWITZ: object to form. I can't really put it on a scale. I am going to hand some documents to Jean. (Exhibit No. 4 was marked for identification.) These are your Answers to your First Set of Interrogatories. Lavetta, please take a look at this. Can you tell me what it is? It's my answers to the questions that my attorney gave me. Can you look at page four? Please read your response to yourself, and then tell me if there are any other facts about what happened while you were in the Suburban with sergeant Kopf that either aren't in the response or that we haven't talked about today. MR. HOROWITZ: I object. You mean up to the time RAPID REPORTING (605) 343-0066 65

1

of the assault? You don't mean post-assault in the Page 58

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8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Q

el k(1). TXT didn't have any place else to go. He told me that he was going to see my brother in Kyle at the high school, so I got in with him. Q which brother is that? A Eme ral d. Q HOW many brothers and sisters do you have? A I have four brothers and two sisters. Q what are their names? A Daverine, Lloyd, Emmaline, Jeremy, Emerald and Jeffrey. Q And the order of siblings where do you fit in at? A There's Daverine, Lloyd, Emmaline, Jeremy, me and then Emerald and Jeffrey. Did you ask sergeant Kopf to leave you at the convenience store? No, because I didn't have any place to go. I didn't know what to do. After you got back in the suburban, what's the next stop you made? RAPID REPORTING (605) 343-0066 68

1 2 3 4 5 6 7 8 9 I0

A Q

My cousin Jackie's house. How long had you been driving before you stopped at Jackie's house?

A Q A Q A

About ten minutes. where does Jackie live? she lives south of Kyle, and I don't know roads. Does she live in the town of Kyle? NO. The College Center is, she lives by the college Center, and it's about ten miles south of Kyle.

Q

Did you have any conversations with sergeant Kopf while Page 61

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el k(1) .TXT 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A A A Q A Q A Q A Q A
Q

I still haven't got a good night sleep. since January 7, 2003, you haven't gotten a good night sleep? NO. Are you taking any medications to help you sleep? NO. I have my son, so I don't want to take anything. You don't want anything to help you sleep? Yeah. How many hours per night do you normally sleep? About three. Are you suffering any other injuries from this incident on January 7th? MR. HOROWITZ: objection to form.
It'S hard

to go anywhere. I don't like myself anymore.

Everything he said he liked about me, I just want to change. You say it's hard to go anywhere, can you explain that? I mean I don't even know where he's at now, and it's hard to even come up here. I can't even drive towards RAPID REPORTING (605) 343-0066 78

I 2 3 4 5 6 7 8 9 A Q A Q A Q

Manderson anymore. I always have to have one of my brothers with me. Do these symptoms require you to stay at home all day? Yes. some days I don't even want to go anywhere. when is the last time you had a day like that? These past few days. Are there any other symptoms that you have had since this incident? Just depressed, whenever stuff comes up I get panic Page 70

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11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q A Q

el k(1). TXT I don't know what M.H. is. Does that look like what's written on this page? I can't tell. I'll represent to you that that's what it says. Does M.H. sound familiar to you?

A Q

No. DO you remember requesting a new counselor at the end of April?

A Q

NO.

I don't remember.

were there any counselors that you would have been seeing during that period?

A

I don't remember any names. Like I said, there was a male and then there was a female.

Q A

At Pine Ridge? Yes. RAPID REPORTING (605) 343-0066 9O

1 2 3 4 5 6 7 8 9 10 11 12 13

Q Indian Hospital? A Yes. Q Lavetta, could you describe your expenses that resulted from the incident that happened on January 7, 2003? MR. HOROWITZ: Object to the form. A Q Expenses? How much did you spend on going to the doctors as a result of the incident on January 7, 2003? A I don't know. Do you know if you spent any money seeing a therapist as a result of this incident? A Q I don't know. Did you spend any money on medications as a result of Page 81

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el k(1). TXT 14 15 16 17 18 19 20 21 22 23 24 25 Q A Q No. DO you have any additional costs or expenses because of the incident on January 7th of 2003? MR. HOROWITZ: I object to the form. THE WITNESS: Additional costs? Is there anything else you spent money on because of this incident on January 7, 2003? RAPID REPORTING (605) 343-0066 91 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Q A Q A A Q A Q A Q
NO.

this incident? A Q No. I don't think so.

Did you spend any money on going to counseling as a result of this incident? MR. HOROWITZ: I object to the form.

I know that you met with Dr. Mills, have you been examined by any other experts as part of this litigation? Experts? Any other doctors or psychiatrists or psychologists? All I go to is just my uncle and medicine man. I am going to turn to your symptoms again a little bit. was there any change in your symptoms in the years 2000 through 2005? MR. HOROWITZ: THE WITNESS: I object to the form.
NO.

Actually I mean 2004, 2005?
NO.

They stayed the same? Yes. Page 82

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20 21 22 23 24 25 Q A Q A

el k (1). TXT Mexico. I was in Idaho. when did you move back to the Pine Ridge area? Last year, last April. Actually this past April, April of this year. Have you gone to school since then? Yeah. I started school at Milwaukee Career college and RAPID REPORTING (605) 343-0066 93

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

things were going good, and then this case was brought up again, and I couldn't concentrate, and I quit. And I was talking to some of the women there, and they said they'd give me another chance of going to school so I started again, and I finished. Did you get a degree? I got a diploma, a medical assistant diploma. Did you feel worse once the case started up again? Yes. Before that, had you been feeling better? Yeah. I felt better because I was over in wisconsin, and I didn't worry about smelling him, you know. I still had nightmares and dreams and things that reminded me, but it wasn't as bad as being back here. I had different things to do and different people to meet. Did you have a good time there? The only thing that made me feel good there was my husband, and he made me feel safe. It was a different kind of safe than what I had with my family. Did you live in an apartment there in wisconsin? Yes.

Q with your husband? Page 84

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el k(1). TXT 23 24 25 A Q A Yes. Before that why did you keep moving around? I went to Idaho with my brother. His sister in law had RAPID REPORTING (605) 343-0066 94 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 A Q a husband that looked almost just like sergeant Kopf, and I couldn't stay there anymore. My brother was telling me to stay and begging me to stay, but I couldn't, so I left, and I came back here, and everything reminded me of that day. so I got a ticket and I went down to New Mexico and I stayed with my cousin down there, and the same thing happened, so I went to Iowa. same thing. I was in North Carolina. Same thing. I went to cali fornia. Same thing. Q were you traveling alone to these places? A Yes. Q when you say the same thing, what do you mean by that? A something reminded me of sergeant Kopf; a certain smell, or if somebody talked that sounded like him, or somebody that looked like him. Q what sort of degree did you earn at Milwaukee Career col I ege? Medi cal assistant di pl oma. And what does a medical assistant do?

A work in the hospital; screen patients and take their vitals. Q could a medical assistant work in a doctor's office? A Yes. Get them prepped for the doctor. Q Can you describe any employment you had during high school? Page 85

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el k(1). TXT 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q A Q Q A Q A Q A Q Q A Q A Did you have any boyfriends in high school? No. when were you allowed to start going out on dates? I didn't really worry about going on dates. I was too busy and focused on school and sports, so it didn't really bother me to not have a boyfriend. Every weekend there was games, so it wasn't really a big thing for me. Have you gone out on dates since then? No. Have you had any boyfriends since high school? NO. I met my husband and that was it. when did you meet your husband? In December of '03. Before you met your husband, had you had any sexual experience? Once. Did you have any difficulty with that experience? Yeah, It was really uncomfortable. Did you talk to anybody about that experience? RAPID REPORTING (605) 343-0066 99 1 2 3 4 5 6 7 8 9 A Q A A Q A Q NO. Did you take any steps to address what was difficult about it? No. How would you describe your relationship with your husband? It's good. He's patient, so that's good. When did you have that sexual experience? with my husband? Page 89

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el k(1) .TXT 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A A Q A Q A Q good. Do you have a sexual relationship with your husband? Yes. Have you had any difficulty with that aspect of your relationship? sometimes. what sort of difficulty? whenever the case comes up or I remember something, I don't want him to touch me. I have a difficult time with him even holding my hand sometimes. How do you deal with those feelings? He talks to me. He talks about it, and he tells me it's okay. RAPID REPORTING (605) 343-0066 i01 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Q A A Q Is that helpful when he does that? A Yes. Q Have you talked to anybody about the issues your having when the thoughts of the case come up? NO. The only person I come talk to is my uncle and my medicine man. Can you describe your relationship with your parents?
It'S good.

Pretty open. It didn't use to be like that,

but now it's good. Q when did it change? A After 3anuary '03. Q How did it change? A We became closer. can you describe your relationship with your extended fami I y? Page 91

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el k(1). TXT 16 17 18 19 20 21 22 23 24 25 Q A Q
A

A

We are all close, we are all very close. dinners and inviting everybody over. Do you enjoy having a son? Yes. what do you like about it? Everything. Can you tell me a little bit more?

Always having

Q A

Just have a bad day and you turn and look at him and he's smiling at you. His first tooth just popped out, and he's starting to crawl, or he wants to walk.
RAPID REPORTIN6

(605) 343-0066 102 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 A Q A Q
A A

Q

Before January 7, 2003, did you ever receive any treatment from a psychologist, psychiatrist or a therapi st? I talked to a counselor in high school, but that was about college. I don't remember anything else.

Q A

Did you talk about personal issues with the counselor? Just about when my family wanted me to stay close for college, and I wanted to go away. Other than that, nothing.

Q

Did you ever visit a counselor while you were at Rockhurst?
NO.

Q

Now, do you drink alcoholic beverages on a regular basis? Now? NO. When is the first time you had an alcoholic beverage? Around February of '03. when did you stop drinking alcoholic beverages? Page 92

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elk(1).TXT 19 20 21 22 23 24 25 Q A Q A Q A I stopped in June of '03, and then I started again in November of '03. That was it. when did you stop? November of '03. So you just drank during that month? Yeah. I stopped in December, whenever I met my husband. During February, 2003 through June, 2003, how many RAPID REPORTING (605) 343-0066 103 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Q A Q A Q A Q A Q A Q A drinks per week would you have? I started off with like one, and then like I said it made my nightmares and stuff go away for awhile, and then you drink a little more, you forget more, and then it comes back to you and you drink more and you forget more. I couldn't tell you how many, down to how many bottles I had. I can't really tell you that. Like I said, I didn't get to where it was a problem or anything. I mean it became a problem and it just made me remember more is why I stopped. Did you have any problems stopping? No. Did you receive any help to stop drinking? No. Just did it on your own? Yes. Have you ever had any serious illnesses? No. Have you ever had any serious physical ailments? No. Before the birth of your son, had you ever been pregnant Page 93

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el k(1) (2). TXT 22 23 24 25 A Q A before? Yes. when was that? I miscarried six times before then. RAPID REPORTING (605) 343-0066 104 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q A Q A Q A Q A Q A Q A Q A A Q For your first pregnancy, how many weeks had passed when the miscarriage occurred? I counted 25, but my doctor says 16. somewhere in between there. And when did that miscarriage occur? In October of '03. How did you feel after that? Like a failure. Did you talk to anybody about your feelings? NO. Did you try to get any help for those feelings? NO. When did you get pregnant again? I don't remember dates. You can tell me, generally? Around February of '04. And when did you miscarry? Three weeks into my pregnancy.

Q what's your third miscarriage? A June. Q Do you remember June of what year? A Q A '04. How many weeks had you been pregnant? Seven. I found out in June I was pregnant, and then Page 94

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el k (1). TXT 106 1 2 3 4 5 6 7 8 9 i0 ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q A Q Q A A A Q No. Were the doctors able to determine why you miscarried those times? They kept telling me it was stress. And with every pregnancy I was put on bed rest. But they just kept telling me I was stressed. Did they recommend you do anything to feel less stress? They wanted me to go -- they asked me what I was stressed about, and I didn't want to go into detail. Like I said, it was a new place, and I wanted to start over new, and so I really didn't go into detail. Did they recommend you take any medication to help you with that? No. They just wanted me to get better, to take care of myself and start eating right. what was the cause of your stress during those pregnancies? They kept asking me what I was stressed out about, and RAPID REPORTING (605) 343-0066 107 like I said, I didn't want to go into too much detail Page 96 A Q A Q miscarriage? Yes. And when is your sixth miscarriage? It was just five, because this was my sixth pregnancy. Did your personality change at all after your mi scar ri ages? MR. HOROWITZ: Object to form.

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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 A A A Q Q

el k(1). TXT about this case. Is it correct you said you didn't have any -It's 2:00 o'clock, and we will go ahead and go off the record. (A break was taken from 2:00 to 2:10.) MS. CULLEY: Back on record. Lavetta, you mentioned that stress was causing your miscarriages, what was the source of that stress? MR. HOROWITZ: I object to the form. The case. Everything.

Q what do you mean by everything? A I feel happy and safe with my husband, but at the same time I'm fighting remembering stuff that he sa~d, or remembering his smell. Q when you say "he" -A Sergeant Kopf. Q were there any other sources of stress in your life? MR. HOROWITZ: I object to form. The stress of wanting to move on with my life, but being held back, so it's hard to talk about it. It's hard to try and move on. Are you trying to move on? Yes.

Q what are you doing to help yourself move on? RAPID REPORTING (605) 343-0066 108 A Q well, I have my son. Is there any source of stress unrelated to your encounter with sergeant Kopf? MR. HOROWITZ: I object to the form. Page 97

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5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Q Q A A Q A Q A Q A Q Q A

el k(1). TXT THE WITNESS: No. After your miscarriages, did you feel emotional? Yes. But each time I got pregnant again, you know, I'd be happy, and then when I finally had my son, it was the greatest. How did you feel after you finally had your son? Complete. Really happy? Yes. After your miscarriages, did you cry often? Yeah. Yes. who woul dn' t? Did you feel like your miscarriages impacted your self-esteem? A little. Like I said, I felt like a failure, then again it kind of made me want to try harder.
DO

you feel anxious after your miscarriages?

NO. Like I said, I have my husband to help me, and he's always talking me through everything.
DO

you feel depressed after your miscarriages?

Yes. Did you have a hard time sleeping after your RAPID REPORTING (605) 343-0066 109

1 2 3 4 5 6 7 A Q Q A

mi scar ri ages? After January of '03 I've always had a hard time sleeping. After your miscarriages, did you have any loss of appetite? No. After your miscarriages did you feel angry at all? Page 98