Broken Treaties

Government officials promised Arlo Looking Cloud a deal if he'd help them solve one of the most notorious murders in Native American history. So what's he doing in prison?

"It was kind of a fluke," Detective Alonzo says, describing how he got involved with the Aquash investigation 11 years ago. It's an unseasonably warm spring morning and we're in Alonzo's car, parked on Colfax, where the 33-year veteran of the Denver police department arrested Looking Cloud. Alonzo is a squat, heavyset, middle-aged man with a busy salt-and-pepper mustache and glasses. Clad in an untucked floral-print shirt, he could pass for a bouncer at a beach-themed nightclub. He explains that in 1993 police chief David Marshad asked him to help out the head U.S. marshal for the Federal District of South Dakota, who was coming to investigate the murder.

The marshal was Robert Ecoffey. He was the first Native American ever appointed to a top position in the 206 years of the U.S. Marshal Service; he was also a former GOON. He arrived at Denver police headquarters wearing jeans and cowboy boots. Briefing Alonzo on the Aquash murder, Ecoffey said he'd been interested in the case ever since an otherworldly experience in 1976. Ecoffey said that one day, back when he was a supervisor at the Pine Ridge jail, he heard voices emanating from a cell in the women's block. He went to investigate and found the cell was empty. Spooked, he consulted with a medicine man, who left Ecoffey thinking the voice was Aquash crying from the afterlife pleading for justice.

"When I first talked to Bob," Alonzo says, "he mentioned Arlo right away. We just didn't have all the pieces back then. We had bits and pieces, but we were running short of time. Because our witnesses were dying off on us. And there was still an atmosphere where we weren't trusted by the Native Americans, understandably, for some reasons."

The reasons were many. There was history. There was the fact that Ecoffey was a former GOON. And there was the way the feds initially handled the investigation. When a rancher found Aquash's body on his land in February 1976, some two months after the murder, FBI agents arrived on the scene. Although one of the agents had arrested and interrogated Aquash and knew her well, he said he was unable to identify the body. At the Pine Ridge morgue, an FBI-paid pathologist determined the probable cause of death was "due to exposure." He tagged the body "Jane Doe," and it was buried in an unmarked grave on March 2, 1976. The following day, the FBI determined the body's fingerprints belonged to Aquash and notified her family, who immediately requested a second autopsy. The body was exhumed, and a second pathologist noticed the bullet hole surrounded by dried blood on Aquash's head. In 1981 the U.S. Commission on Civil Rights determined the FBI's handling of the Aquash homicide had been "at the very least an extremely indifferent and careless investigation."

Nothing would come of the case until 1993, when Ecoffey was made the top marshal in South Dakota and started asking questions. He came upon a confidential source who told him he ought to talk to Looking Cloud, a homeless Lakota on the streets of Denver.

Looking Cloud wasn't hard to find. After the killing, he returned to Denver and rarely left the northeast neighborhood. He did odd jobs for his Aunt Martha - because she gave him a few dollars here and there, because she was family, but also because she was an older native woman. In the Lakota culture, when a matriarch needs help a male obliges. That tradition, Looking Cloud says, influenced his decision to go with Clark and Graham. "When I arrived at Troy Lynn's, Theda told me to go down to the basement and I did. She asked me to drive to Rapid [City], she didn't say why, and I said "yes.'" As Looking Cloud tells it, he was shaken by the Anna Mae murder, and shortly thereafter he experienced another tragic death. Looking Cloud's lover, Charlotte Zephier, gave birth to their second child, a baby girl whose heart inexplicably stopped beating. "Some days," Looking Cloud now says, reflecting on that period, "you wish you'd never been born."

Drinking wasn't enough to make him forget Aquash, his dead baby daughter, and so much else. He turned to drugs. Serious stuff. Acid, speed, mescaline, whatever he could find on the streets and in the "Indian bars." Wasted and high, he roamed away from his family and into trouble. In the fall of 1994, he was arrested after a car accident. He was drunk and driving with a suspended license. Back at the police station, Looking Cloud found himself sitting across a table from Alonzo, who started asking about Aquash.

Other than Featherman, Looking Cloud says, he didn't associate much with family after Aquash's murder. "I didn't want to bring any trouble to anyone, or involve anybody," he says. "I wasn't sure what [AIM] would do if they thought I'd told people." But with Alonzo asking him pointed questions, uncertain what to do, Looking Cloud turned to his father. John Looking Cloud had gotten himself clean and sober. He'd even managed to land some acting gigs, playing an Indian in a couple of forgettable movies. On his son's behalf, John, who is now deceased, hired a Parker-based attorney, Henry Mulvihill, to represent his son.

A few nights after Looking Cloud's arrest, Looking Cloud and the lawyer were, as Mulvihill recalls, "smuggled" from police headquarters to the FBI's Denver office. "There were armed guards all around," Mulvihill says. "People were worried about Arlo's safety. I was worried about my safety." And the feds indeed offered Looking Cloud a deal. Dated Nov. 3, 1994, and signed by Looking Cloud, Mulvihill, and Assistant U.S. Attorney Dennis R. Holmes, it reads in part: "No statements made by or other information provided by Mr. Looking Cloud during the 'off-the-record' proffer or discussion will be used directly against your client in any criminal proceeding."

Looking Cloud says he told the feds what he knew because he was tired of running from the past and he wanted to do the "moral thing." He says that's why, in 1995, he went with Ecoffey and Alonzo out to Pine Ridge, to where Aquash was killed, repeated what he had told them in 1994, and helped them piece together the crime. Looking Cloud says that's also why, in 2002, when a friend approached him with the name and number of Aquash's daughters, he called and told them what he remembered of that night.

"His words were, 'We were told to pick up your mother in Denver and drive her to Rapid City,'" recalls Denise. "He said he believed they were just taking her out to scare her, and he didn't think things would go the way they did. His voice was shaky. I assume he was crying. We couldn't believe it," Denise says. "He said he wanted peace and he wanted to give us closure. We listened to him for what was about an hour. We thanked him and we wished him healing."

Instead of healing, Looking Cloud got indicted. The following year, in 2003, a grand jury hearing was convened and indicted both him and John Graham. Alonzo hit the streets and found Looking Cloud wandering along East Colfax. Even before Looking Cloud was booked, the detective called Ecoffey in South Dakota. The U.S. marshal hopped on the next plane to Denver, and that afternoon he and Alonzo took a videotaped statement.

In the beginning of the interview, Alonzo informs Looking Cloud of his rights; he's advised he has the right to remain silent, anything he says can be used against him, that he has the right to talk to a lawyer before questioning and have a lawyer present during questioning. Looking Cloud's asked if he understands these rights. In a barely audible voice, he says, "Yes." He is sitting across a table from Alonzo and Ecoffey, with his head down, hands in his lap. His eyes are slits and his voice is a mumble. He appears exhausted or high or drunk, or perhaps all three. Alonzo and Ecoffey have Looking Cloud sign a couple of forms as proof that the statement he is about to give is given voluntarily. Only a few minutes into the interview, after Looking Cloud has offered short, disorganized answers to Ecoffey's questions, Alonzo asks him if he's been drinking or on drugs. "A little bit," Looking Cloud says. "Alcohol." Alonzo then asks him to sign another form indicating he's giving his statement voluntarily and the interview continues.

There is no mention of the 1994 deal then, and there was no mention of the deal at his trial. Likewise at the trial, no one addressed the fact that many notes from Looking Cloud's 1994 interview with Alonzo and the 1995 interview with Alonzo and Ecoffey at the crime scene had been, as Alonzo puts it, "mistakenly" destroyed. Incredibly, while the prosecution called more than 20 witnesses to establish that Looking Cloud at the very least knowingly assisted with the murder, Looking Cloud's court-appointed attorney, Timothy Rensch, called only a single person to the stand. Rensch asked a former FBI agent who was detailed to Pine Ridge in the '70s if Aquash had been an informant. While the question had little to do with the legal heart of the case, the agent's response answered at least one of the long-lingering mysteries; he testified that to his knowledge Aquash had never been an FBI informant.

The last bit of evidence U.S. prosecutors offered to the jury before Looking Cloud was found guilty of first-degree murder was the March 27, 2003, videotaped statement of Looking Cloud. It was, in Ecoffey's opinion, "the evidence that hung Arlo." James McMahon, the lead U.S. prosecutor on the case, says the videotape was admissible because the deal his colleagues made with Looking Cloud in 1994 applied only to what Looking Cloud told them "at that specific time. Therefore what he said on the tape in 2003 was not covered by the agreement."

Respected defense attorney Terry Gilbert, however, describes McMahon's playing the videotape at the trial, and for that matter the entire case against Looking Cloud, as unconstitutional and wrong. Working pro bono, Gilbert filed a 69-plus-page appeal on Looking Cloud's behalf last August. The Cleveland-based attorney is no stranger to controversial, high-profile cold cases. He spent a decade trying to clear the name of the infamous Sam Sheppard. A Chicago doctor convicted of killing his pregnant wife in 1954, Sheppard passionately maintained his innocence and became the inspiration for the television and movie series "The Fugitive." Hired by Sheppard's son, Gilbert meticulously researched the case, discovering DNA evidence that strongly suggested another person had in fact committed the crime, yet the science was not enough to convince a jury. Gilbert is convinced his Looking Cloud appeal will have a different outcome. In the appeal, Gilbert argues Looking Cloud had ineffective counsel that allowed the government to convict a mentally weak and vulnerable man who was in the wrong place at the wrong time when he was a mentally weak and vulnerable kid. (Defense attorney Rensch did not return several calls made to his office seeking comment.)

"The prosecution's case against Arlo," Gilbert says, "is based on trickery and deception. Arlo was really being used as a scapegoat when the government got frustrated with the courts and the investigation. To me, they were hoping to get Arlo to name higher-ups and put AIM on trial, but when he said he didn't know how exactly AIM was involved - because he didn't know - they wound up putting Arlo on trial, who really had nothing to do with the murder. There really was no evidence against Arlo proving anything except he was there for the ride. I think this case is in line with the whole history of using Indians in a disingenuous way, of the government making promises and then breaking their promises."