The only evidence against Leonard Peltier was the fact that he was present at the Jumping Bull ranch during the fatal shoot-out. There were more than 30 other individuals there on the day of the shooting—members and nonmembers of the American Indian Movement (AIM)—but only AIM members were prosecuted. Leonard Peltier is the only person who was convicted, sentenced, and imprisoned. And, today, the U.S. Attorney admits that no one knows who fired the fatal shots.
At the Peltier trial, the prosecutor claimed in summation that "… we proved that he went down to the bodies and executed those two young men at point blank range..." At one appellate hearing, however, the government attorney conceded, "We had a murder, we had numerous shooters, we do not know who specifically fired what killing shots... we do not know, quote-unquote, who shot the agents."
At Peltier's trial the prosecutor, referring to the weapon alleged to have been used in the killings of the agents, stated that, "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…"
Leonard Peltier’s lawyers later filed a Habeas Corpus petition claiming that the government had misled the jury by concealing evidence of the presence of other AR-15 rifles, and thus other potential weapons used in the killings of the agents, at the scene of the incident.
The same prosecuting attorney, before the Eighth Circuit Court in 1992, claimed that "... I think it’s simply a misstatement of the trial that there was no evidence presented and it was suppressed as to other AR-15s at the scene..."
Among the exculpatory evidence withheld by the FBI during the trial of Leonard Peltier, a teletype dated October 2, 1975, shows that Bureau tests conclusively determined that the rifle attributed to the defendant 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.
FBI lab notes detailing a firing pin test performed with the "Wichita AR-15" also show that the weapon did not match the crucial casing recovered at the scene. At trial, Evan Hodge testified that the test was "inconclusive."
During the Peltier trial, the FBI produced approximately 3,500 documents and claimed that these were all the documents in existence. Through a Freedom of Information Act (FOIA) request, the Peltier attorneys discovered that some 12,000 documents had been withheld. Six thousand documents were then released. More recently, despite the FBI's claim that only 6,000 full documents related to this case remain undisclosed—and that these are merely "administrative" documents, of no use to the defense team—Leonard Peltier's attorneys have discovered that the government continues to withhold tens of thousands of documents concerning Leonard Peltier's case. In recent years, Leonard Peltier’s attorneys have filed FOIA requests with FBI Headquarters and various FBI field offices in an attempt to secure the release of these additional documents concerning Leonard Peltier. Similar FOIA requests also have been submitted to the Central Intelligence Agency.
Although the FBI has engaged in a number of dilatory tactics to avoid the processing of FOIA requests—claiming "national security" or "ongoing investigation" reasons—thousands of FOIA documents were released in 2002-2005. But not nearly enough of them. Based on the critical nature of those documents that have been disclosed over the years, such as the results of ballistics tests, it is reasonable to conclude that the remaining files would contain evidence that may help to establish Leonard Peltier’s innocence. Four decades after the shootings, there is clearly no current reason to fear national security risks or the disruption of ongoing investigations.
As compared to similar cases, Leonard Peltier has served a significantly longer period of imprisonment than is normal before a grant of parole is made. Yet, the U.S. Parole Commission has made it clear that parole will not be granted—even though Peltier has served over twice the normal time in prison according to the Commission's own congressionally mandated guidelines.
No adequate reason has been given by the government for such arbitrary and discriminatory treatment. Instead, the Parole Commission stated at one hearing that the denial of parole was based upon Leonard Peltier’s participation in the "premeditated and cold blooded execution of these two officers." Yet, as noted, there is no evidence that Leonard Peltier ever fired the fatal shots. This has been admitted by the government attorneys themselves.
In addition, various current and former FBI agents and U.S. Attorneys have been present during parole hearings to personally oppose Leonard Peltier’s release.
More recently, it also has been made clear that Leonard Peltier will not receive parole until he "recognizes his crime" or, in short, confesses to a crime he did not commit.
Also consider that from the time of Peltier's conviction in 1977 until the mid-1990s—according to the Bureau of Justice Statistics, U.S. Department of Justice (DOJ)—the average length of imprisonment served for homicide in the United States ranged from 94 to 99.8 months (about 8 years). Even if you were to take Peltier's two consecutive life sentences into account at the higher end of this range, it is clear that Peltier should have been released over a decade ago. On that basis alone—according to the due process and equal rights protections of the U.S. Constitution—Leonard Peltier should immediately be released.
Clemency as regards the Peltier case refers to the commutation of his sentence, not a pardon. A president can decrease the amount of time Leonard Peltier must serve prior to release or immediately release Leonard Peltier for time already served. (A pardon can only be awarded once a released prisoner has been free and hasn't re-offended for a period of five years.) The authority to grant a commutation of a sentence imposed by a federal court belongs to the President (under Article II, Section 2 of the U.S. Constitution). The decision to commute Leonard Peltier's sentence is the President's and the President's alone.
Mr. Peltier applied for clemency in late 1993. Before leaving office in 2001, then President Bill Clinton did not approve or deny a grant of Executive Clemency to Leonard Peltier. He opted to do nothing. According to the clemency guidelines followed by the DOJ, the petition was still pending. However, during the last days of his Administration (2009), George W. Bush denied Leonard's clemency petition. Mr. Peltier has been free to reapply since 2010.