10 Reasons
(Published in 2005, Revised 18 August 2009)
An innocent man, Leonard Peltier was
wrongfully convicted and illegally imprisoned for the deaths on
June 26, 1975, of two agents of the Federal Bureau of
Investigation (FBI). He has served over 30 years in federal prison
despite proof that he was convicted on the basis of fabricated and
suppressed evidence, as well as coerced testimony. He also has
been denied fair consideration for Executive Clemency and parole.
The U.S. appellate courts, by their decisions, have recognized the
undisputed misconduct in Peltier's case, yet have refused—by
misapplying legal standards and claiming lack of authority—to
take corrective action.
The debate about
Peltier's case has continued over the decades, but the only things
that matter are those things that have transpired in our courts of
law. Judicial opinions themselves provide the rationale for
Peltier's immediate release:
1. According to
Judge Fred Nichol, after presiding over the Wounded Knee trial of
American Indian Movement (AIM) leaders Dennis Banks and Russell
Means, "... the FBI was determined to get
the AIM movement and completely destroy it." (NY Times,
Sept. 17, 1974.) Numerous instances of investigative and
prosecutorial misconduct came to light in that case. In open
court, Nichol spoke with particular severity of the Federal Bureau
of Investigation (FBI). "It's hard for me to
believe," he remarked, "that the FBI,
which I have revered for so long, has stooped so low."
Addressing the court, Nichols said: "The
fact that incidents of misconduct formed a pattern throughout the
course of the trial leads me to the belief that this case was not
prosecuted in good faith or in the spirit of justice. The waters
of justice have been polluted, and dismissal, I believe, is the
appropriate cure for the pollution in this case." This
ruling, however, failed to prevent further instances of misconduct
in subsequent AIM-related prosecutions.
2. Jury Foreman
Robert Bolin, after the acquittals of Leonard's co-defendants,
Dino Butler and Bob Robideau, stated: "The
jury agreed with the defense contention that an atmosphere of fear
and violence exists on the reservation, and that the defendants
arguably could have been shooting in self-defense. While it was
shown that the defendants were firing guns in the direction of the
agents, it was held that this was not excessive in the heat of
passion." (Bolin has stated that he was genuinely alarmed
by the anger exhibited by FBI agents when the verdict was read to
the court.) Had Leonard been tried with his co-defendants, he also
would have been acquitted of the crimes he was alleged to have
committed. However, Leonard was tried separately and not allowed
to argue self-defense (even though his actions on June 26, 1975,
were no different than those of his co-defendants). Also, during
Peltier's trial, repeated reference was made by the prosecution to
the actions of Butler and Robideau—who
allegedly did what, where, when and how... to the extent that the
prosecutor even stated outright, during closing arguments, that
all three men had murdered the agents in cold blood. The one thing
the Peltier jurors were not told was that co-defendants Butler and
Robideau had been acquitted the previous year—and
by reason of self-defense.
3. The first
appeal of Peltier's conviction occurred in 1977 before the Eighth
Circuit Court of Appeals. Judge Donald Ross stated:
"But can't you see... that what happened
happened in such a way that it gives some credence to the claim...
that the United States is willing to resort to any tactic in order
to bring somebody back to the United States from Canada? And if
they are willing to do that, they must be willing to fabricate
evidence as well." This statement was made in reference to
the coerced and perjured affidavits discovered to have been used
to extradite Leonard Peltier from Canada. Nevertheless, on
September 14, 1978, the Judgment of Conviction was affirmed.
4. Prosecutor
Lynn Crooks, during oral arguments before the Eighth Circuit Court
of Appeals on October 15, 1985, and in stark contrast to his
summation to the jury at Peltier's trial in 1977, stated:
"We can't prove who shot those agents."
Crooks argued that Peltier had been "proven" to have "aided and
abetted" the killings of the agents. Such contortions generated a
marked confusion among the appeals judges. "Aiding and abetting
Robideau and Butler?" they asked. "Aiding and abetting whoever did
the final shooting," Crooks responded. "Perhaps aiding and
abetting himself. And hopefully the jury would believe that in
effect he had done it all." In its ruling on September 11,
1986, the judges' indicated that Crooks' aiding and abetting
argument held no merit. The judges observed that all indications
were that the jurors had convicted Peltier of first degree murder
on the premise that he was the shooter. Also, as a matter of law,
the elements of "aiding and abetting" are well defined, i.e.,
"aiding and abetting" isn't merely a matter of the accused having
been present at the scene of a crime. It also is true that when
the principals in a crime have been found not guilty, as Butler
and Robideau were, there is no one who can be responsible for
having "aided and abetted."
5. The trial
testimony on the Wichita AR-15 (claimed by the government to have
been Leonard Peltier's weapon and to have caused their agents'
fatal injuries) was the lynchpin of the prosecution's case.
A FBI teletype dated October 2, 1975,
indicated that (FBI ballistics expert) Evan Hodge had performed a
firing pin test on the Wichita AR-15 and compared it to the
cartridges found at the scene of the shooting. Contrary to his
trial testimony that the test was inconclusive, this memo stated
that, without a doubt, the rifle contained "a different firing
pin" from the weapon used in the firefight. This
exculpatory evidence was withheld from the defense at trial and
discovered years later with the release of documents via the
Freedom of Information Act. The prosecution also had claimed that
the Wichita AR-15 was the only weapon of its type present at the
scene on the day of the shoot-out. FBI documents obtained after
the trial show that this also was a false claim.
6. Allegedly, the
Wichita AR-15 shell casing was found in the trunk of Agent Coler's
vehicle. FBI documents released after Peltier's trial showed that
two different FBI agents claimed to have discovered that shell
casing—and
on two different days. The judges of the Eighth Circuit Court of
Appeals stated: "There are only two
alternatives... to the government's contention that the .223
casing was ejected into the trunk of Coler's car when the Wichita
AR-15 was fired at the agents. One alternative is that the .223
casing was planted in the trunk of Coler's car either before its
discovery by the investigating agents or by the agents who
reported the discovery. The other alternative is that a
non-matching casing was originally found in the trunk and sent to
the FBI laboratory, only to be replaced by a matching casing when
the importance of a match to the Wichita AR-15 became evident."
The Court recognized, then, that key evidence against
Leonard Peltier could only have been fabricated by the government.
7. In 1986, in
its ruling on Peltier's 1985 appeal, the Eighth Circuit of Appeals
implicitly acknowledged that the United States government had used
dishonest means to effect Peltier's conviction. The court
concluded that the government withheld evidence from the defense
favorable to Peltier, "which cast a strong
doubt on the government's case," and that had this other
evidence been brought forth, "there is a
possibility that a jury would have acquitted Leonard Peltier."
The court had erred in its strict interpretation of the Bagley
standard (United States v. Bagley, 478 U.S. 667, 1985), however.
While under the circumstances, a jury might well have arrived at a
different decision in the Peltier case, the judges claimed, these
circumstances fell short of the judicial standard required in
ordering a new trial, that is, the court must find that the jury
"probably" rather than "possibly" would have acquitted Peltier.
However, the Ninth Circuit Court of Appeals had previously
rendered an opinion in another case and established the legal
precedent that a clear "possibility" of acquittal was all that was
required. The author of the Eighth Circuit Court's decision, Judge
Gerald Heaney, commented that the decision on Peltier's appeal was
the most difficult one he'd ever been required to make. In a
letter supporting a 2001 award of Executive Clemency to Leonard
Peltier, Heaney wrote: "The United States
government must share in the responsibility for the June 26
firefight... It appeared that the FBI was equally to blame for the
shootout... the government’s role can properly be considered a
mitigating circumstance… At some point, a healing process must
begin... Favorable action by the President in the Leonard Peltier
case would be an important step in this regard."
8. Before the
Court of Appeals on November 9, 1992, Prosecutor Lynn Crooks again
admitted, "We don't know who shot those
agents." Also in 1992, Crooks demonstrated his
predisposition to achieve a conviction even if based on false or
fraudulent evidence when, in an interview conducted by Steve Kroft
on the television show "West 57th Street," he said,
"It doesn't bother my conscience one bit...
Doesn't bother my conscience one whit. I don't agree that there's
anything wrong with that, and I can tell you, it don't bother my
conscience if we did."
9. At the time of
Peltier's sentencing, convicted defendants could request "a second
round before the sentencing judge... giv[ing] the judge an
opportunity to reconsider the sentence in light of any further
information about the defendant or the case which may have been
presented to him in the interim." In 2002, an appeal was heard by
the Eighth Circuit Court regarding a sentence reduction for
Peltier. Leonard's attorney argued that his two life sentences, at
minimum, should have been concurrent rather than consecutive. On
December 12, 2002, the appellate court stated that the sentences
imposed were themselves legal, but they
"were imposed in violation of [Peltier's] due process rights
because they were based on information that was false due to
government misconduct." The appellate judges upheld the
district court's ruling denying Peltier's motion saying that,
while the court may correct a sentence imposed in an illegal
manner, the courts lacked authority to rule on a motion filed more
than twenty-two years after the 120-day filing period expired.
Unfortunately, Peltier's attorneys could never have filed within
the 120-day period because much of the evidence on government
misconduct in Leonard's case was not discovered until years later.
10. As late as
November 2003, the 10th Circuit Court of Appeals acknowledged that
"…Much of the government’s behavior at the
Pine Ridge Reservation and its prosecution of Leonard Peltier is to be
condemned. The government withheld evidence. It intimidated
witnesses. These facts are not disputed."
