Doubts about Peltier's legal proceedings
- FBI radio intercepts indicated that the two FBI agents had been pursuing a red pickup truck; this was confirmed by the FBI the day after the shootout. Red pickup trucks near the reservation were stopped for weeks, but Leonard Peltier did not drive a red pickup truck. Evidence was given that Peltier was driving a suburban vehicle, sometimes known as a stationwagon or panelvan, a large sedan with an enclosed rear section, able to be accessed from inside the front of the vehicle, by climbing over the seats, or by opening the door or hatch at the rear. Peltier's vehicle was red with a white roof; not a red, open-tray pickup truck with no white paint. The FBI agents' radio message said that the suspect they were pursuing was driving a red pickup truck, with no additional details. At Peltier's trial, the FBI testified that it had been searching for a red and white van, which Peltier was sometimes seen driving. This was a highly contentious matter of evidence in the trials.
- Testimony from three witnesses placed Peltier, Robideau and Butler near the crime scene. Those three witnesses later recanted, alleging that the FBI, while extracting their testimony, had tied them to chairs, denied them their right to talk to their attorney, and otherwise coerced and threatened them. Robideau said during an interview in the Robert Redford/Michael Apted film Incident at Oglala (1982), that "we approached' the agents" cars.
- Unlike the juries in similar prosecutions against AIM leaders at the time, the Fargo jury were not allowed to hear about other cases in which the FBI had been rebuked for tampering with evidence and witnesses.
- An FBI ballistics expert testimony during the trial asserted that a shell case found near the dead agents' bodies matched the rifle tied to Peltier. He said that a forensics test of the firing pin, which would have more definitively matched the gun to the cartridge case, was not performed because the gun was damaged in the fire. A less definitive test indicated that the extractor marks on the case and rifle matched.
- Years later, after an FOIA request, the FBI ballistics expert’s records were examined. His report said that he had performed a ballistics test of the firing pin and concluded that the cartridge case from the scene of the crime did not come from the rifle tied to Peltier. That evidence was withheld from the jury during the trial.
- Though the FBI's investigation indicated that an AR-15 was used to kill the agents, several different AR-15s were in the area at the time of the shootout. Also, no other cartridge cases or evidence about them were offered by the prosecutor’s office, although other bullets were fired at the crime scene. During the trial, all the bullets and bullet fragments found at the scene were provided as evidence and detailed by Cortland Cunningham, FBI Firearms expert, in testimony. (Ref US v Leonard Peltier Vol 9).
- At the conclusion of Peltier’s trial, the prosecutor closed his argument saying, "We proved that he went down to the bodies and executed those two young men at point blank range." However, at the appellate hearing, 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 who shot the agents.".
- The Pennsylvania Parole Commission, which presides over the Lewisburg prison where Peltier was held, denied Peltier parole in 1993 based on their finding that he "participated in the premeditated and cold blooded execution of those two officers." But, the Parole Commission has since stated that it "recognizes that the prosecution has conceded the lack of any direct evidence that [Peltier] personally participated in the executions of the two FBI agents."
Amnesty International has called on prison authorities at the Lewisburg Federal Penitentiary to reconsider draconian sanctions against imprisoned American Indian Movement activist Leonard Peltier and to improve conditions for Peltier and other inmates held in isolation at the facility.
In an August 3 statement, the human rights organization said it "urged Warden Bledsoe to review Peltier's confinement to isolation, and to ensure that he has an opportunity to fairly contest any charges against him. It has also urged him not to confine Peltier in conditions which may be detrimental to his health, and to give him access to appropriate medical treatment he may need."
Peltier has been held in solitary confinement under oppressively hot conditions since June 27 for minor prison disciplinary violations his attorney maintains he did not commit.
Peltier, age 66 and in declining health, now faces at least another month in what he describes as "a steel and concrete box with no ventilation." Federal prison officials initially indicated that Peltier would serve six months in "the hole," but reduced his penalty to 60 days (from the July 11 hearing date) after an outcry from his legal counsel and international supporters.
"These are very, very minor offenses that even if he did commit them are not significant," said lead Peltier attorney Robert R. Bryan.
Serving consecutive life sentences for his alleged role in the slaying of two FBI agents engaged in a June 26, 1975 shootout with AIM members on the Pine Ridge Reservation, Peltier is viewed across the globe as a political prisoner. The shootout occurred in the context of a political struggle by grassroots Lakota traditionalists supported by AIM against a violently corrupt tribal dictatorship backed by the federal Bureau of Indian Affairs and the FBI.
While the U.S. government itself has conceded it cannot prove who fired the fatal shots, it has denied Peltier parole in a classic Catch-22 scenario for refusing to admit personal responsibility for the killings.
Incident reports from the federal prison in Lewisburg, Pennsylvania show Peltier was punished for possessing Scottish currency and for having exposed wires in his cell, according to the prison report, "in the wall of the ceiling." Bryan said Peltier could not have received the 20-pound note in the mail without the complicity of prison employees who carefully open and screen all outgoing and incoming letters and envelopes.
"They had to knowingly let the currency be delivered to my client. They open everything that comes through the mail room except my correspondence," said Bryan. "Whoever it was that opened the letter set it up."
Peltier attempted immediately to send the bill back out through the mail, but this time the bill was detected. His cell was searched and the exposed wires found. "He sent it out thinking he was doing the right thing," said Bryan. During the search, Peltier's "religious items were thrown around" by prison authorities, the attorney alleged.
Bryan said Peltier had confronted a previous cellmate over the electrical wires, which the cellmate had apparently used to improve his radio reception, and thought the issue resolved. The attorney added that the timing of the incident itself is rather suspect.
"It was the day after the anniversary of [the June 26, 1975 shootout at] Oglala and two days after the defeat of Custer [on June 25, 1876]. It seems a little coincidental."
After 35 years in prison, Peltier scrupulously adheres to institutional rules and is noted for his role as an elder counselor to younger inmates. The only reason Peltier remains in Lewisburg, which began to transition into something of a supermax facility for problematic prisoners in 2008, is that he was assaulted by fellow Natives upon his transfer to Canaan federal penitentiary, also in Pennsylvania, on Jan. 13, 2009.
Peltier did not fight back and was placed in isolation for refusing to name his attackers. Prison authorities have refused to release videotapes or reports on the assault, or even admit that it occurred, despite requests from the North Dakota Associated Press, as well as Peltier's defense. The indigenous activist suspected that the incident was staged in order to incite a disciplinary violation in advance of his parole hearing later that year, and it is difficult to otherwise explain why a respected, if not revered, Native warrior and freedom fighter would be brutally beaten by his own comrades in the absence of external instigation.
Peltier supporters were encouraged by the election of Barack Obama in 2008, but the president's failure to replace Drew Wrigley as U.S. Attorney for North Dakota helped deny Peltier a fair parole hearing. Wrigley hoped to ride the issue into the governor's office but had to settle for lieutenant governor instead, by painting Peltier as a violent criminal whose release "would promote disrespect for the law." This disingenuous argument helped persuade the U.S. Parole Commission to override its presumptive 30-year maximum sentence requirement, one by which no less a reformed prisoner than past and present Charles Manson adherent Squeaky Fromme was released shortly before Peltier was denied.
Amnesty International, however, has monitored the case for more than three decades and argues to the contrary that Peltier's continued incarceration could have the same effect of diminishing respect for U.S. legal institutions. Amnesty International has recognized Peltier as a political prisoner and called for his "immediate and unconditional release," while supporting his efforts toward executive clemency or parole.
In a 2000 press release calling for presidential clemency from Bill Clinton, AI said it "believes that the evidence that Peltier shot the two FBI agents is far from conclusive. One of the organization's pivotal concerns was that his extradition from Canada was on the basis of a testimony by an alleged eye-witness who was coerced by the FBI into making false statements. In a recent public hearing in Toronto, Canada, Myrtle Poor Bear reasserted that her original claim -- that she was Peltier's girlfriend and that she saw him shoot the agents -- was false, and was a result of months of threats and harassment from FBI agents. She had also said that she had been 80 kilometers (50 miles) away from the scene at the time of the shooting. "Amnesty International has repeatedly voiced serious concerns over the fairness of the legal proceedings which led to Leonard Peltier's conviction and sentence, and believes that political factors may have influenced the way in which the case was conducted," the organization said of the 1977 federal trial in Fargo, North Dakota.
In response to a recent Freedom of Information Request by Peltier attorneys, the FBI claimed it had misplaced and could not locate Myrtle Poor Bear's files. Peltier attorneys say the suppressed FBI files are among more than 140,000 that have been denied release on privacy or national security grounds. The most recent suppression of documents came from a 2009 8th U.S. Circuit Court of Appeals ruling upholding a government decision to withhold, among 11,000 pages of files, "twenty-one volumes of what the FBI described as 'informant information.'" Remarkably, the federal courts found no compelling public or historical interest in the documents sufficient to override the privacy interests of federal informants and their handlers, though U.S. v. Peltier will undoubtedly go down in history as one of the most controversial court cases of the 20th century and one of a long and growing list of legal injustices against Native peoples in the U.S.
Bryan says the defense will appeal the 2009 parole denial but that his legal efforts will ultimately go to the root of the problem. An internationally renowned human rights attorney who has helped save the lives of as many as 200 death row inmates, Bryan says Peltier's current legal status amounts to a death sentence. Yet he firmly believes that the truth will set Peltier free.
"The elephant in the room is that Leonard is innocent," says Bryan. "It's very clear he did not kill the agents; he's a political prisoner. All he wants now is to live out the rest of his days at Turtle Mountain, where he will be welcomed as a respected elder."
Jeff Armstrong is former Communications Coordinator for the Leonard Peltier Defense Offense Committee.