A State of Denial: FBI Forensics and Leonard Peltier

A recent Washington Post article ("Federal review stalled after finding forensic errors by FBI lab unit spanned two decades," 29 July 2014) reported that "Nearly every criminal case reviewed by the FBI and the Justice Department as part of a massive investigation started in 2012 of problems at the FBI lab has included flawed forensic testimony..." The findings so troubled the Bureau that it stopped the review of convictions last August. (Case reviews resumed this month at the order of the Justice Department.)

Forensic laboratories all over the country have experienced problems with flawed science and forensic testimony. "States Stalled on Probing Lab Problems" by Robert Tanner (Associated Press, March 24, 2007) examined the states’ reluctance to truly address the failings of their crime laboratories. It was suggested that states are unwilling to act and the lack of concern is symbolic of the justice system's overall refusal to dig into its own failings. As regards such failings: "Prosecutors and law enforcement people [would] rather not know the answers about why we have these muckups."

We have these "muckups" because forensic scientists at state- and federally controlled laboratories often mistakenly feel they work for prosecutors and believe their job is to provide prosecutors with the “evidence” — even if fabricated and/or misrepresented — to effect a conviction. In this scenario, forensic laboratories impose the prosecutor’s beliefs on the evidence, rather than finding the truth — in clear violation of the precepts of good science.

In recent years, throughout the entire United States, miscarriages of justice have been uncovered at an alarming rate. While some estimates place the number of innocent people wrongfully convicted at one percent of all cases, some say it is probably higher. If one percent is accurate, however, the number of people currently wrongfully imprisoned is approximately 200,000. Many of these wrongful convictions have been based on the work of the nation’s forensic laboratories.

The reality: Forensic laboratories play an integral role in developing cases for prosecution and also have been shown to engage in misconduct. Crime laboratories across the nation have come under scrutiny for poor scientific techniques and handling of evidence, providing misleading data to juries or skewing data to support prosecution claims, or providing completely false testimony and fabricated evidence.

The laboratory operated by the FBI is no exception (although Tanner's article neglected to touch on the FBI’s shortcomings).

Government reports in the recent past have found serious fault with FBI lab procedures: "FBI abandons disputed test for bullets from crime scenes," Associated Press, 02 Sep 2005; and "DOJ faults FBI for fingerprinting error," Associated Press, 11 Mar 2006. The FBI laboratory has come under fire frequently enough in the past 10 years that a clear pattern of misconduct has emerged and this pattern of misconduct at the U.S. Department of Justice, and that of the FBI, remains consistent.

But this behavior on the part of the FBI lab began a long time ago.

In the Peltier case, specifically, critical ballistics evidence has been proved to have been fabricated. Contrary to what the government would have you believe, the actual test performed by the FBI lab proved Peltier’s INNOCENCE. This fact was, of course, hidden from his attorneys and therefore from the jury at Peltier’s 1977 trial. Peltier was convicted and sentenced to two consecutive life terms. At age 69, Peltier has now been imprisoned for over half of his life for a crime he did not commit.

Native American activist Leonard Peltier was wrongfully convicted in connection with the shooting deaths of two FBI agents on the Pine Ridge Indian Reservation, South Dakota.. Imprisoned for over 38 years — currently at the federal prison in Coleman, Florida — Peltier has been designated a political prisoner by Amnesty International. Nelson Mandela, Desmond Tutu, 55 Members of Congress and others — including a judge who sat as a member of the court in two of Peltier’s appeals — have all called for his immediate release. Widely recognized for his humanitarian works and a six-time Nobel Prize nominee, Peltier also is an accomplished author and painter.

Evidence clearly shows that Bureau tests conclusively determined that the rifle attributed to Peltier had not fired the cartridge casing allegedly recovered from the trunk of Special Agent Coler's car. FBI firearms expert Evan Hodge testified to the opposite at trial. View the FBI's own document. It tells the tale.

The shameful record on the ballistics evidence in the Peltier case runs much deeper yet.

Beginning on October 1, 1984, in connection with a Habeas Petition filed by Peltier’s attorneys, an evidentiary hearing was held on the ballistics evidence, specifically the FBI teletype of October 2, 1975, which, contrary to prior testimony by the FBI’s expert, stated that the "Wichita AR-15" allegedly used by Peltier during the shoot-out could not be linked to the critical .223 casing found near the bodies of the FBI agents. The teletype had been discovered well after the trial via a Freedom of Information Act action brought on Peltier’s behalf.

The evidentiary hearing was conducted before Judge Paul Benson (hardly an objective jurist given the fact that he had presided over Peltier’s trial and had a personal interest in seeing that the conviction was upheld, and despite his reputed anti-Indian bias and an attorney's affidavit attesting to Benson's derogatory extrajudicial references to Peltier, specifically).

During the hearing, Special Agent Evan Hodge surprisingly divulged that he had testified before the grand jury on November 24 and 25, 1975, just prior to Peltier's indictment and that he had not written (but merely signed) the ballistics affidavit used to help extradite Peltier to the U.S. from Canada. Not surprisingly, the government had illegally withheld the grand jury testimony — and proof of when the lies began — from the defense team.

Confronted by the FBI teletypes, Hodge invalidated his earlier trial testimony — according to the government prosecutors, the most crucial testimony in Peltier's trial.

While Hodge had testified that only he and an assistant had examined the evidence, notes in a third style of handwriting were present on the lab report. Denying on the stand a third participant in the evaluation of evidence, therefore again committing perjury, Hodge later claimed he had misspoken. The court ignored the pattern of perjury that was evident and accepted Hodge's explanation.

The hearing was suspended to give the government time to identify the third party and for the defense to question that individual. Although the information became immediately available following the hearing, the FBI waited one month before officially identifying the third person to handle the ballistics evidence.

Also, at Peltier's trial, the prosecutor had referred to the weapon alleged to have been used in the killings of the agents: "There is only one AR-15 in the group. There is no testimony concerning any other AR-15 at Tent City or at the crime scene or anywhere else in the area…"

The prosecutor intentionally misled the jury, it was later found, by concealing evidence of the presence of other AR-15 rifles, and thus other potential weapons used in the killings of the agents — none of which were attributed to Leonard Peltier.

Judge Benson nevertheless denied Peltier's Habeas Petition. All the government’s machinations were deemed a "mistake," only simple human error rather than anything done with intent.

On October 15, 1985, oral arguments regarding a Motion for a new trial were held before the Eighth Circuit Court of Appeals. At this time, faced with proof of its own misdeeds as regards the AR-15 and the actual ballistics evidence, the government suddenly changed its prosecutorial theory to one of "aiding and abetting," even though they also admitted that they "can't prove who shot those agents."

Given that Peltier’s co-defendants were acquitted on grounds of self-defense and no others have been tried, it isn’t at all clear who Peltier allegedly aided and abetted. Also, many others were present at the shoot-out that took place on the Pine Ridge Reservation on June 26, 1975. None of those estimated 30 to 40 individuals was ever charged with aiding and abetting.

Peltier's appeal was ultimately denied.  The court ruled that it was only "possible" (rather than "probable") that the jury would have acquitted Peltier had they been presented with the true ballistics evidence.  As such, the Peltier case did not rise to the then very high standard required to receive a new trial.

According to Tanner, some of the nation’s experts say the only fix to the use of junk science and laboratory misconduct is to establish a system of accreditation, as well as licensure and certification. Necessarily there must be standards set, too, for the use of forensic science, i.e., ensuring that only valid sciences are utilized, making certain that quality assurances and quality controls are employed, and establishing an oversight mechanism that requires reporting, investigation, and remedial action upon the incidence of laboratory error.

However, "because no entity that is responsible for serving the public good can be expected to identify its shortcomings or pinpoint the source(s) of its own problems, independent forensic science commissions should be established" — in states and as regards the FBI laboratory — "that direct independent, external investigations into allegations of misconduct, negligence or error committed by employees or contractors of labs or entities that produce forensic findings."

As regards the FBI laboratory, "independent" and "external" are key elements in identifying its shortcomings because the U.S. Congress, which has oversight for FBI activities and procedures, simply has failed to do its job.

Had an independent oversight entity been in place to identify lab "errors," ensure that only valid sciences were employed, and review the use of “expert” testimony, it is likely that the perjuries made by Mr. Evan Hodge in Leonard Peltier’s trial (and after) would have been recognized. It also would have been more likely that Mr. Hodge’s misconduct and that of federal prosecutors would have been identified much earlier. At minimum, Leonard Peltier may have been given a new trial.

Instead, Mr. Hodge continued his work and went on to provide testimony in many more cases throughout his career, and Leonard Peltier languished (and still languishes) in a federal prison.

Learn More

Peter Matthiessen

In the Spirit of Crazy Horse

Meticulously researched, this courageous book is the definitive work on the Peltier case. The author successfully defended against lawsuits brought in three different states, surviving an eight-year litigation designed to block the book's publication.

Jim Messerschmidt

The Trial of Leonard Peltier

Foreword by William Kunstler. A well-documented and researched study, this book examines the orchestration by the federal government of the wrongful conviction of Native American activist Leonard Peltier.

Leonard Peltier

Prison Writings: My Life Is My Sun Dance

Edited by Harvey Arden. Peltier chronicles life in prison. Peltier explores his suffering and the insights it has borne him in the context of American Indians and their struggle to survive.


We the People

We the People have read your Constitution, Mr. Obama.  We also are aware of the clemency application review process (28 C.F.R. Part I, §§ 1.1-1.11) and know that these guidelines do not bind the President. Congress and the Department of Justice (DOJ) cannot regulate or otherwise limit the presidential clemency power. The authority to grant clemency to federal prisoners belongs only to the President of the United States (under Article II, Section 2, of the U.S. Constitution). You have the power to grant clemency to anyone, for any reason, and at any time.