1. The history and circumstances surrounding this case are critical to a full understanding of the tragic shootout of June 26, 1975 and the ensuing prosecution and conviction of Mr. Peltier. There had long been serious tensions between the traditional peoples of Pine Ridge reservation, and the pro-assimilation and pro-government tribal chairperson, Mr. Dick Wilson, who was fully supported by the United States government. The traditionalist people called for the assistance of the fledgling civil rights organization called the American Indian Movement or "AIM". However, the conflict intensified, and came to a head in 1973, when the traditionalists protested ongoing local and government abuses by occupying the town of Wounded Knee, the site of the historic massacre of several hundred Lakota people by the United States army. The United States officials responded with military force, laying siege to the town and firing hundreds of thousands of rounds at the men, women, children and elders inside. The siege lasted for nearly seventy-two days, and disaster was averted only when the White House promised thorough investigations. The government's use of military force was later ruled improper and illegal.
2. After the traditional residents returned to their homes across Pine Ridge Reservation, the situation deteriorated. The promised investigations never took place. Instead, the FBI arrived in massive numbers on the reservation, and other U.S. law enforcement and military agencies greatly increased their presence in the region as well. Meanwhile, Dick Wilson's vigilante group, the Guardians of the Oglala Nation, or "GOONS" carried out an open and notorious campaign against the traditionalists and all AIM members and supporters, including children. Houses were burned, and people were threatened, assaulted, battered and murdered. There are reports of 64 such killings, all of which took place between 1973 and 1976, a period now referred to by the Lakota residents as the "Reign of Terror."
3. During this three year period, the FBI maintained a close working relationship with the GOONs, turning a blind eye to their illegal activities, sharing information about AIM affairs, and according to one GOON leader, furnishing armor piercing ammunition on a certain occasion. (See enclosed video: "In the Spirit of Crazy Horse.") Little or no effort was made to halt or control the violent and often fatal conduct of the GOONs. The United States Commission on Civil Rights was also highly critical of the conduct of FBI officials them-selves during this period. This state of affairs is set forth in detail in our Ethics Complaint, filed with your offices in June 2000. A copy is attached hereto for your convenience. We are aware that the FBI has recently presented a report regarding 76 of the victims from the Reign of Terror, claiming that many of these cases involved personal squabbles, and accidental deaths from exposure, and that many others were properly investigated and prosecuted. We firmly disagree with these conclusions, and find the report to be superficial, self serving and inaccurate. We are now in the process of preparing a response. However, as time is of the essence in the matter of executive clemency, we are attaching a copy of Prof. Ward Churchill's response to this report for your information and convenience.
4. Meanwhile, the FBI and other U.S. officials vigorously and often improperly prosecuted all AIM supporters and members for large and small. There were many instances of grave official abuse of power and misconduct in handling these legal matters, including the coercion of witnesses and the use of false testimonies. We note for example, that in the trial of Mr. Dennis Banks for matters involving the Wounded Knee siege, the judge dismissed the charges, declaring that the FBI had "polluted the waters of justice" by presenting false testimony and tampering with a witness. U.S. v. Banks and Means, 383 F. Supp. 389, at 397 (D.S.D. 1974). Similar instances occurred in other AIM related prosecutions around Pine Ridge. Moreover, the FBI acted improperly in many other ways towards the locals as well, including unnecessary intimidation tactics, improper interrogations without attorneys, and searches without warrants. Again, these matters are detailed in our recent Ethics Complaint.
5. We also note the severe censure of FBI conduct at Pine Ridge by the United States Civil Rights Commission. A letter from Mr. William Muldrow, the former investigator from the Commission is enclosed here. For a detailed and heavily annotated history of the FBI handling of affairs during the Reign of Terror, see "Offer of Proof," 1991. As made clear by that history, although the FBI originally recognized that AIM was a civil rights type organization, the agency nevertheless moved swiftly to stifle all AIM activities and programs, severely hindering all exercise of free speech and association.
6. It was in this atmosphere of fear and violence that the tragic shootout at the Jumping Bull ranch occurred on June 26, 1975. Leonard Peltier was a gifted young AIM leader at that time, and he had been sent to the Jumping Bull ranch with a small group of members and supporters in response to the Jumping Bull family's request for assistance and protection. Most of the persons in the group were under the age of twenty-one. Mr. Robert Robideau and Mr. Darrell Butler were among the other adult members present. Non-AIM persons were also present on the ranch during different periods, as well as friends and relatives of the Jumping Bull elders.
7. The details of the gunfight itself are tragic, yet far from clear. To summarize, two FBI agents, Mr. Jack Coler and Mr. Ron Williams, pursued a red pick-up truck onto the ranch, and shooting broke out between the vehicles. The agents were in unmarked cars, their identities as federal officials in no way apparent. Women and children in the nearby houses were caught in the crossfire, and in the confusion there were screams that the ranch was under attach. From throughout the property, people came running to assist and to return fire. When the firefight ended, the two agents lay dead. They had been wounded, then were shot at close range through the heads by an unidentified person. To this day the U.S. Attorneys admit that no one knows who fired the fatal shots. Nearby FBI agents reported that a small red pick-up fled the ranch just after the killings. It was never found or identified.
8. FBI cars, law enforcement agents, SWAT units and vigilantes then surrounded the ranch and poured down gunfire. The AIM members present were mostly adolescents. One was eleven years old. A young Native man named Joe Stuntz was shot through the head by a sniper's bullet. Leonard Peltier, together with Mr. Robideau and Mr. Butler, were able to lead the remaining group to safety by crawling through an underground culvert and running through heavy gunfire on the other side.
9. Mr. Peltier then fled to Canada, believing that he would never receive a fair trial. Mr. Butler and Mr. Robideau were arrested and stood trial for murder. The jury found that there was no evidence to link them to the fatal, close range bullets and that the mere act of returning fire was a matter of self defense under those circumstances. The two men were acquitted and went free. This left the FBI with only one adult AIM leader whom they could name and who was present on the ranch that day: Mr. Peltier. The entire investigation then shifted away from other suspects and came to focus on him alone.
10. Mr. Peltier was extradited from Canada on the basis of an affidavit signed by Myrtle Poor Bear, a local woman who claimed that she was Mr. Peltier's girlfriend and had personally witnessed the killings. She had in fact signed three completely contradictory affidavits, the sequence raising obvious signs of coercion. Yet only the third affidavit, stating that she had witnessed the murders, was presented to the Canadian government. When Mr. Peltier returned in chains to the United States, Ms. Poor Bear informed the judge that she had never met Mr. Peltier and had signed only after the FBI agents had heavily intimidated her and threatened to take away her child. The judge did not allow this information to reach the jury. Unlike the other judges presiding over recent AIM prosecutions, this judge also forbid the presentation of any evidence that the FBI had been falsifying evidence and coercing witnesses in similar cases. The jury was thus unable to properly evaluate the credibility of the remaining witnesses in the Peltier trial. Years later, Judge Ross of the Eighth Circuit Court of Appeals severely chastised the Special Prosecutor over the use of the Poor Bear Affidavits.
11. Three teenaged AIM witnesses were then forced to testify. At different stages of the prosecution, they contradicted their own prior statements, as well as each other's. None actually witnessed the killings and their stories were also confused and inconclusive. Yet they were damaging nevertheless. All three later admitted that they had been heavily coerced, brutalized, and intimidated by the FBI throughout various stages of the investigation and prosecution; and that their stories had been affected. All three were gravely traumatized by this experience. Two are now dead.
12. Mr. Evan Hodge, the FBI ballistics expert, testified at the trial that Mr. Peltier's alleged weapon had been badly damaged in a fire, and that the most precise test, the firing pin test, could not be performed. Instead the less precise test, the extractor test was performed, and the weapon was found compatible with a bullet casing found near the agents' bodies. Years later, through a Freedom of Information Act release, a copy of Mr. Hodge's first ballistics test was discovered. Mr. Hodge had indeed been able to perform the firing pin test and had done so. He concluded that the weapon was not compatible, and reflected a different firing pin. In short, the fatal bullets did not come from Mr. Peltier's weapon. Although Hodge tried to say he had not tested the crucial casing until much later, the record shows that it was rushed to his lab immediately after the shooting. It was the only casing found so close to the bodies and was thus a critical piece of evidence. This leaves Mr. Hodge's explanation with little credibility. Judge Heaney of the Eighth Circuit Court of Appeals has called the FBI conduct in the Peltier case a "disgrace."
13. The FBI had always reported that the agents had pursued a red pick-up truck onto the Jumping Bull Ranch, and that such a vehicle escaped from the ranch just after the agents' deaths occurred. Similar vehicles were stopped and searched across the reservation. The story remained the same at the Robideau-Butler trial. Yet at Leonard Peltier's trial this changed radically. It was claimed that the agents were chasing a red and white van, quite similar to a vehicle sometimes driven by Mr. Peltier, so as to more closely link him to the shootout. All mention of the escaping pick up truck was dropped.
14. The conduct of both the FBI and the U.S. Attorneys with regards to courtroom conduct, press statements and handling of the jury were so prejudicial as to make a fair trial impossible.
15. Mr. Peltier appealed his conviction but was denied a new trial by the courts. After the discovery of the concealed exculpatory ballistics test he demanded a new trial. He was turned down by the Eighth Circuit Court of Appeals, Judge Heaney presiding, on the basis of an overly strict reading of the Bagley standard, which requires a finding that the jury would probably have ruled differently. Judge Heaney has made it clear in the opinion as well as in interviews with the press and others that the court considered its hands to be tied; and that, had the standard been more flexible and allowed for a new trial if the jury "might" have ruled differently, Mr. Peltier's request would have been granted, implicitly leaving open the possibility of Mr. Peltier's innocence. The Supreme Court denied certiorari. Judge Heaney has written a moving and well reasoned letter, requesting that executive clemency be granted to Mr. Peltier.
16. The U.S. Attorneys office has repeatedly admitted that no one knows who fired the fatal close range shots at the two agents.
17. Six thousand documents remain concealed in FBI files despite the passage of twenty five years.
18. Mr. Peltier is long overdue for parole. Yet the United States Parole Commissioners have made it clear that their hands, too, are tied by Mr. Peltier's legal predicament. The Parole Commission is bound by the court's conviction. As a result he was denied parole in 1993 on the grounds that his crime was particularly grave and violent. Mr. Peltier was again denied parole in June 2000. The denial was clearly based on the fact that Mr. Peltier has not properly accepted "responsibility" for his crime by making a full "confession." In short, he must confess to a crime he did not commit or face death or disablement in prison long after he should have been released on parole.
19.
Mr. Peltier now suffers from diabetes, a heart condition, and hypertension. He is near
blind in one eye as a result of inadequate medical care in prison. Blindness, stroke and
kidney failure are amongst the risks he faces. He suffered for many years from a painful
jaw condition which prison physicians were unable to repair. Despite offers of free
treatment from a Mayo Clinic physician, he was denied authorization until a United Nations
Raporteur formally rebuked the United States on the grounds of torture.
There are numerous compelling grounds for granting immediate executive clemency to Mr. Peltier. For your convenience, we have divided the discussion of these matters into three categories. The first category includes the weighty humanitarian considerations raised by this case. These considerations, which include his remarkable human rights contributions as well as his precarious medical condition, are unrelated to the corruption of justice questions presented in the second category. We believe that the humanitarian issues, in and of themselves, more than justify Mr. Peltier's immediate release, and that clemency may be granted without reference to the official misconduct which so plagued the investigation and trial process. The second category evaluates the disturbing justice issues raised, which are also sufficient, in and of themselves, to justify executive clemency. Lastly, we address the deep and lasting wounds inflicted on the relationship between the U.S. government and its Native citizenry. Taken together, these considerations not only provide reasonable grounds for a grant of clemency, they make such an executive order both urgent and mandatory. Our national honor as a world leader in human rights affairs is at stake.
During his twenty-four years in prison, Mr. Peltier has used his time constructively and has a remarkable record of humanitarian achievements and contributions to charitable causes. These activities are summarized below, and clearly show that, despite everything he has suffered, Mr. Peltier remains a generous and compassionate person with many gifts to share with his people as well as with the American public in general. Should he be freed, it is his greatest wish to return to those who love him, and continue his charitable works.
1. Leonard Peltier has long sponsored an annual Christmas drive for clothing and toys for the children and families of Pine Ridge Reservation. He has also sponsored similar drives for other reservations, Head Start programs, and women's centers.
2. Mr. Peltier has achieved recognition for his own art and has sought to share the benefits with other prisoners by working to have their works displayed nationally. He seeks to help raise inmate self-esteem and to initiate formal art programs for fellow prisoners.
3. In 1992 Mr. Peltier helped to establish a scholarship program at New York University for Native American students seeking law degrees.
4. Mr. Peltier has long served on the Advisory Board for the Rosenberg Fund for Children.
5. Mr. Peltier collaborated with Dr. Steward Selkin in efforts to plan a restructured health care delivery system on the reservations. A pilot program was initiated in Rosebud in order to properly document needs and requirements for delivery and care; and resulted in the "Leonard Peltier Health Care Reform Package". Substance abuse programs are an important part of this proposal.
6. Mr. Peltier worked closely with Prof. Jeffrey Timmons in establishing a job creation/job training program to stimulate reservation economies and promote investments in Native American enterprises. A youth entrepreneur program was also organized to help reservation youths to learn to establish and run their own businesses.
7. Mr. Peltier was instrumental in establishing and funding a Washington State Native American newspaper run by and for Native youth.
8. Mr. Peltier has sponsored two children through Childreach, one in El Salvador and one in Guatemala.
9. Mr. Peltier helped to organize an emergency food drive for the people of Pohlo, Mexico in response to the Acteal massacre there.
10. Mr. Peltier has donated his artwork to raise moneys for the ACLU, the Trail of Hope (A Native American program dealing with drug and alcohol addiction), World Peace and Prayer Day, the First Nation Student Association, and the Buffalo Trust Fund. He also donated his art to raise moneys for books and encyclopedias for Pine Ridge libraries.
11. Mr. Peltier also facilitated and helped to coordinate a 1999 and 2000 delivery of several tons of Gerber baby food to various centers on Pine Ridge Reservation.
12. After the devastating tornado struck Pine Ridge Reservation several years ago, Mr. Peltier donated still more of his artwork to raise funding for desperately needed supplies.
13. Mr. Peltier has consistently worked with younger prisoners to teach them of their heritage and advocate drug and alcohol free lifestyles.
Mr. Peltier's remarkable achievements have been recognized by many, and he has been honored with the North Star Frederick Douglas Award, as well as the International Human Rights Award from the Human Rights Commission of Spain.
Medical concerns also weigh heavily in favor of Mr. Peltier's immediate release from prison. Mr. Peltier is now fifty-six years of age and he has been imprisoned since he was thirty-one. He has passed nearly twenty-five of the prime years of his life behind bars in high security prisons. Not surprisingly, given the poor diet, exercise, hygienic conditions and medical care provided to prisoners, he is now in seriously deteriorating health and faces grave problems in the future. Most disturbingly, it is clear that in some instances there has been bad faith neglect and denial of needed medical treatment in some instances. Such denial of care has left him virtually blind in one eye, and caused years of unnecessary pain from a serious jaw condition. It is sad indeed to think that the United States government could be the subject of a United Nations rebuke for cruel and inhumane treatment. But this has been the reality for Mr. Peltier.
If Mr. Peltier is not soon released, he will face grave complications and even disablement or premature death in prison within the coming years. It will then be too late for justice or mercy in this most disturbing case.
Dr. Peter Basch of Washington D.C., has been evaluating Mr. Peltier's last three years of medical problems and treatment. Dr. Basch received his M.D. from the George Washington School of Medicine in 1978, and is now teacher at that University, as well as carrying out a full time private practice. He is affiliated with Physicians for Human Rights, a U.S. based human rights organization.
To begin with, Dr. Basch notes that during the last three years Mr. Peltier was given inadequate medical treatment for shingles, a painful condition; and that there was no adequate follow up on a possible kidney stone. He is being properly treated for his positive tuberculosis skin test and his chest X ray is negative.
Far more serious is the fact that Mr. Peltier has had multiple moderate to severe blood pressure readings without proper follow-up or adjustment of his medication and treatment. Likewise there is no adequate monitoring or care of the retinal venous occlusion in his left eye. Although the records reflect stroke conditions, no details are given and Dr. Basch notes the lack of any proper neurological exams or follow up. Moreover Mr. Peltier suffers from diabetes (non-insulin dependent type). Proper care should include an annual foot exam, a retinal exam, an endocrinologist evaluation, and yearly urine test for microalbumin, and regular blood sugar and kidney tests. Mr. Peltier's records show that in the last two years he has received two educational visits and nothing more. Not even the Bureau of Prison recommendations have been followed.
Dr. Basch states that Mr. Peltier has several potential causes of visual impairment, including blindness, as well as kidney failure. Sub-optimal care for a person with Mr. Peltier's health problems "can lead to serious complications, including recurrent central retinal vein occlusion, stroke, heart disease and kidney failure." Dr. Basch concludes his report as follows: "It is my opinion that his care for two acute medical conditions and two of his chronic medical conditions, was below a reasonable standard of care and may thus predispose him to an unnecessary risk of serious and life threatening complications."
We are particularly concerned with what can only be interpreted as bad faith and vindictive denial of needed medical care. Mr. Peltier suffered for a number of years from an extremely painful jaw condition which caused him constant and severe headaches. Specialized surgery was needed, but the prison physician was unable to perform such an operation. Prison authorities denied offers of outside assistance, and required Mr. Peltier to undergo surgery by the prison doctor. As noted in the enclosed United Nations Raporteur letter, conditions were barbaric and Mr. Peltier's jaw problem, if anything, worsened, leaving him unable to chew properly, and in excruciating pain. A Mayo Clinic specialist offered again and again to repair the jaw free of charge, but permission was repeatedly and arbitrarily denied by prison officials. As a result, Mr. Peltier suffered years of unnecessary pain until public outcry and international pressure forced Leavenworth officials to permit the Mayo Clinic assistance.
Similarly, prison officials failed to provide Mr. Peltier with reasonable and adequate care after his stroke some years ago. Mr. Peltier as a result lost 80% of the vision in that eye. As noted in Dr. Basch's letter, proper care and monitoring continue to be withheld, leaving him at risk for blindness.
As this record makes clear, Mr. Peltier is a great gift to society, and if released could contribute even more generously to Native people and to all American citizens. This indeed is his greatest wish. The fact that he has been able to keep his spirits strong, and his activities both constructive and positive, speaks worlds of this man's strength and good character. We note, in this regard, the recent letter of Ms. Linda Kettlehut, who conducted a mental health screening of Mr. Peltier many years ago at Lompoc Prison. As she writes: "My interview with Mr. Peltier, along with the interpretation of his MMPI scores, lead me to conclude that, in my professional opinion, he was a non-violent person, and if released, would not be a threat or danger to society. Mr. Peltier is the only person that I examined during my employment at the institution that I believed to be truly innocent." Ms. Kettlehut strongly supported Mr. Peltier's release on parole.
We also note the enormous popular support that quickly surged in favor of Mr. Peltier's release at the time of his June 2000 parole hearing. Some ten thousand letters were received from the general public within a four month period, and presented to the parole commission. There were also numerous offers of employment, support, housing and social services, should he be released. The support of the Native American community has been remarkable, with numerous tribes presenting formal resolutions in favor of his release, and numerous Native organizations voicing strong support as well. Clearly, Mr. Peltier's transition to private life outside of Leavenworth will be greatly buffered and supported by his many friends and family members.
This broad based support reflects another key consideration, the need for national healing. The history of U.S. government relations with its Native citizenry is not a proud one. Moreover, this case arose from a truly disturbing chapter of recent civil rights history, specifically, the "Reign of Terror" on Pine Ridge Reservation, which lasted from 1973-1976. Mr. Peltier has already served more years in prison than recommended by Department of Justice Guidelines, and for reasons discussed herein, he has truly become a living symbol of ongoing U.S. repression against Native peoples. As Judge Heaney of the United States Court of Appeals wrote in his 1991 letter in support of clemency: "At some point, a healing process must begin. We as a nation must treat Native Americans more fairly. To do so we must recognize their unique culture and their great contributions to our nation. Favorable action by the President in the Leonard Peltier case would be an important step in this regards."
We note, sadly, that various FBI officials continue to paint Mr. Peltier a a violent and dangerous man. This is simply unsupported by any realities. They cite, in support of their position, the fact that Mr. Peltier was once charged with attempted murder of a policeman in Milwaukee, and that he once escaped from Lompoc prison. Both of these distorted claims have been addressed in our Ethics Complaint of June 26, 2000. We are greatly concerned that U.S. officials continue to prejudice and obstruct Mr. Peltier's right to fair and impartial consideration of his requests for clemency and parole by the use of intentionally inaccurate and deceptive statements and omissions. As noted in our Ethics Complaint, Mr. Peltier was long ago acquitted of the attempted murder charges, after the jury learned that he had been provoked and badly beaten by policemen in civilian dress. These officers, after first insulting and then severely battering Mr. Peltier, claimed attempted murder when they found a broken handgun on his person. Mr. Peltier was fully aware that the weapon was useless and had made no attempt to fire it at anyone. The policeman's girlfriend reported that the officers had been looking at Mr. Peltier's photo beforehand, and commenting that "they were going to catch a big one." This incident occurred during the peak of FBI surveillance and harassment of AIM members. Similarly, when Mr. Peltier was incarcerated at Lompoc Penitentiary, he was informed by a fellow inmate, Mr. Standing Deer, that he was being pressured by prison and other officials to set up Mr. Peltier's murder. Mr. Standing Deer urged him to flee and helped to arrange for his escape. Mr. Peltier then fled with another Native prisoner, who was shot to death at the wall by prison guards. Neither Mr. Peltier nor the other men were armed during their escape and no shots were fired by them. Although Mr. Peltier was apparently given a rifle for his own defense once he jumped the walls, he inflicted no injuries upon any person during the brief time that he was free. He was never convicted of shooting at anyone. Again, I refer you to the letter of mental health professional Linda Kettlehut, who knew Mr. Peltier throughout this time period, and remains firm in her position that he is a non-violent person.
From the above presentation, it is clear that Mr. Peltier remains a compassionate, intelligent and productive citizen and leader, knowledgeable about human rights and humanitarian causes, and highly skilled in initiating, organizing and facilitating public service efforts. Should he be released, his many friends, relatives and supporters will move swiftly to assist him with the transition back to civilian life. This man presents no dangers of any kind to the public. To the contrary, he is a great gift to our society. If released, he will at last be free to broaden his contributions to his own people and to many others, at home and abroad. If his case is yet again ignored, his medical condition creates a real risk that he will become disabled or even die an untimely death in prison. Should such a tragedy occur, the damage to public confidence in the government, and to our national status as a world leader in human rights affairs, will be irrevocably damaged.
Taken together, these matters independently and fully justify an immediate grant of executive clemency to Mr. Leonard Peltier.
Just as the humanitarian concerns weigh in favor of a grant of executive clemency, so too do the basic justice considerations raised here provide ample grounds for Mr. Peltier's release. As discussed below, Mr. Peltier never received a fair trial, yet an unresolved quirk in our legal system has also deprived him of the possibility of a new trial, despite the grave errors which occurred. As Judge Heaney, in his moving letter in support of clemency, wrote: "There is a possibility that the jury would have acquitted Leonard Peltier had the records and data improperly withheld from the defense been available to him in order to better exploit and reinforce the inconsistencies casting strong doubts upon the government's case. Yet we are bound by the Bagley test ..." In short, the jury might have found him innocent.
Despite the deeply flawed trial, and Mr. Peltier's excellent record of public service from behind bars, he has been denied parole again and again. Statements by the U.S. Attorney that no one knows who fired the fatal shots have been disregarded. Mr. Peltier has now served more years than recommended by Department of Justice Guidelines, yet cannot obtain release until he "recognizes his crime", by confessing to the fatal shooting of the two young agents. As noted by Archbishop Desmond Tutu, "the point is that he says he is innocent".
Thus Mr. Peltier remains trapped in a "Catch 22" situation, and has no further avenues of redress in our judicial system. This is precisely the rare case that calls for a swift and compassionate exercise of our constitutional checks and balances system. A grant of executive clemency is fully justified.
The serious abuses of Mr. Peltier's due process rights throughout the investigation and prosecution of his case, are set forth in detail above, and make it clear that Mr. Peltier has never received a fair trial. Witnesses were intimidated and coerced, false or seriously altered testimonies were intentionally utilized, and a critical ballistics test reflecting his innocence was withheld from the defense. Obviously a trial rooted in such errors can never constitute a fair trial in our nation. In addition, the FBI and other officials' handling of the jury throughout the trial, together with a highly inflammatory closing argument, made a fair and impartial decision by the jury impossible. Despite this reality, Mr. Peltier has been incarcerated for twenty-four years.
In virtually all cases, abuses and errors of this nature would be swiftly redressed by the judicial branch of our government. However, in this rare and tragic situation, justice has been impossible to achieve. The original appeals of the case were denied. When additional information, such as the concealed and exculpatory ballistics tests, was later discovered, a new trial was requested with great confidence by Mr. Peltier's legal team. There was much publicity surrounding the discovery of the ballistics records; and a highly concerned American public assumed that Mr. Peltier would at last be granted a chance at justice.
Yet the Eighth Circuit Court of Appeals, presided by Judge Heaney, denied Mr. Peltier that new trial, on the basis of a then recent Supreme Court case, U.S. v. Bagley, 87 L.Ed.2d 481 (1985). The Appellate judges believed that no new trial could be granted unless Mr. Peltier could show that his jury would probably have ruled differently if presented with the additional information, in particular, the ballistics test. In the judges' opinion, which many disagree with, the new evidence did not make a sufficient showing to meet this stringent standard. As Judge Heaney later stated, had the legal standard been more flexible, allowing for a re-trial if a jury might have ruled differently, then a new trial would have been granted to Mr. Peltier. In short, even though Mr. Peltier might be innocent, he could not receive a new trial. Moreover, in the eyes of many juries, it is quite clear that a jury would have indeed ruled differently if presented with an FBI ballistics test establishing that the fatal bullets were not fired from Mr. Peltier's weapon. Indeed two jurors admitted this could have changed their verdict.
Despite this ruling, Judge Heaney, has written a moving letter in support of executive clemency for Mr. Peltier.
Thus Mr. Peltier remained incarcerated under his original conviction, although real doubts exist as to his guilt in the minds of many reasonable persons. We note in passing that concerns about the highly flawed trial are held by such highly respected human rights leaders as Amnesty International, Ms. Coretta Scott King, the Robert F. Kennedy Memorial Center for Human Rights, the National Council of Churches, the American Friends Service Committee, the Archbishop Desmond Tutu, Nobel Laureate Rigoberta Menchu, the Rev. Jesse Jackson and the Archbishop of Canterbury, amongst many others.
Mr. Peltier has for many years been eligible for parole. Indeed, given his tireless work for the benefit of the public, one would presume him to be more than eligible. Yet the Parole Commissioners have made it clear that they are bound by the original questionable conviction. As a result, he has been denied release again and again, on the grounds that his crime was of particular severity. The admissions of the U.S. Attorney that no one knows who fired the fatal shots has been insufficient to ease the Parole Commission's position. In the June 2000 hearing, the Commission made it quite clear that Mr. Peltier's failure to take "responsibility" for his crime, in short by confessing, was also a bar to his release. This presents a clear conflict with the fact that the Bagley decision leaves open the possibility that the jurors might have found Mr. Peltier innocent, but for the errors which occurred. This unresolved quirk in our legal system has left Mr. Peltier without legal redress.
Our constitution, together with the most fundamental concepts and values of our nation, prohibit the incarceration of any human being until he or she has had a fair trial and guilt has been established beyond a reasonable doubt. Mr. Peltier's trial was severely flawed, and a reasonable doubt as to his guilt exists in the minds of many. Accordingly, he should not have been incarcerated for twenty-four hours, yet he has spent twenty-four years behind bars. Nevertheless, he has been denied a new trial as well as parole and has no further access to assistance from the court system. This is precisely the unusual and difficult situation that our Founding Fathers sought to remedy through the creation of our systems of checks and balances. A grant of executive clemency and/or commutation under such circumstances is not only appropriate but urgently needed.
We fully recognize that the deaths of the two young FBI agents on June 26, 1975 were a great tragedy. Indeed, the Pine Ridge survivors included the names of both Mr. Coler and Mr. Williams in an honoring ceremony for the 64 Reign of Terror victims. The commemoration was held on June 26, 2000, the twenty-fifth anniversary of the "Incident at Oglala".
We must all agree that the loss of any young and talented person, white or Native, before their time is a matter to be mourned, and we can only sympathize with, although not lessen, the deep and lasting pain and suffering of the agents' families. We also fully comprehend the difficult and often dangerous nature of all law enforcement activities, and the FBI's valid need to protect the lives of their agents.
We recognize that both Mr. Coler and Mr. Williams had dedicated their lives to enforcing the laws and constitution of the United States. The same is true of so many other law enforcement officers who have given their lives to public service and protection. Yet we do not believe that these agents, if they could speak today, would support illegal or improper actions by their friends and fellow officers for purpose of personal revenge. Nor are the agents vindicated by the incarceration of a man who might well be innocent. Acts of blind vengeance and injustice cannot return these young men to their families; nor do such acts do any honor to these agents and the laws and ideals they sought to serve. Such acts can only corrode public confidence for the agency itself, a situation most unlikely to better protect future agents.
Judge Nichol, in his dismissal of the Wounded Knee prosecutions, U.S. v. Banks and Means, 383 F. Supp 380 at 396 (D. S.D. 1974): "It is unquestionably essential to our society that our laws be ensured swiftly and surely. This court also believes however, that our society is not bettered by law enforcement that, although it may be swift and sure, is not conducted in the spirit of fairness and good faith. Those who break our laws must be brought to account for their wrongs, but it is imperative that they be brought to this accounting through an orderly procedure conducted in the spirit of justice. ... Although it hurts me deeply I am forced to the conclusion that the prosecution in this trial had something other than attaining justice foremost in its mind. ... The fact that incidents of misconduct formed a pattern throughout the course of this 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 dismissal in this case."
In the Peltier case, we must begin with the axiom of our system of justice: that only a person proven guilty beyond a reasonable doubt may be deprived of his liberty. The punishment of a political scapegoat, guilty or not, for the purposes of vengeance is prohibited. Similarly, the government must be impartial and even-handed in meting out any punishments, and the equal application of the laws must be strictly observed.
In this regard, we note the enormous discrepancies between the trial of Mr. Butler and Mr. Robideau, and the trial of Mr. Peltier. To begin with, in the first trial, the judge permitted the jury to learn of FBI misconduct in the prosecution of recent AIM cases, so as to enable them to properly evaluate the witness testimony to be presented. Moreover, the jury in that case was handled in a normal fashion, whereas in Mr. Peltier's case it was indicated to the jurors again that they were in danger of violent actions by savage Indian extremists from AIM. In the Butler-Robideau trial, the mere act of returning fire under such exigent circumstances was found to be a matter of self defense. Such acts were not leveraged into an imaginary conspiracy, or considered to constitute the aiding and abetting of a murder. Nor was the evidence found to be sufficient to establish that either man had fired the fatal, point blank shots which ended the agents' lives.
The genuine evidence against Mr. Peltier was virtually the same as that presented against Mr. Butler and Mr. Robideau. All three were adult AIM members present on the ranch the day of the shootout. But virtually no further information existed to link them to the killings. There was a clear government animus against all AIM members and leaders even prior to the shootout, as evidenced by the open official indifference to the brutal killings of the 64 AIM supporters and members during the Reign of Terror, the over-zealous and often unethical prosecutions of all AIM supporters, and the close FBI working relationship with the GOONs, despite their notorious and obvious illegal conduct. After the deaths of the two FBI agents, this animus so intensified as to make professional and ethical handling of the case virtually impossible.
As a result, the conviction of Mr. Peltier, the last remaining adult AIM leader known to have been on the ranch that day, became a goal to be reached by any means necessary. The ensuing FBI abuses across Pine Ridge Reservation in carrying out the investigation have been roundly criticized by civil rights workers. As discussed above, Mr. Peltier's extradition was obtained by nothing less grave than the subornation of perjury and fraud against the government of Canada, a close national ally. Three witnesses, all under the age of eighteen, were severely intimidated and coerced into giving altered and contradictory testimonies. A critical ballistics test reflecting Mr. Peltier's innocence was concealed from the defense. The weapon alleged to be Mr. Peltier's was claimed to have been the only weapon on the ranch that could have fired the shots in question; a statement later recanted by counsel. In fact there were many potential compatible weapons on the ranch that day. Highly relevant testimony about the escape of the red pick-up truck shortly after the deaths of the agents was also altered. The issues of self defense were never seriously evaluated.
In short, Mr. Peltier's trial comes perilously close to a de facto lynching by government officials bent on obtaining personal vengeance against the American Indian Movement. The untainted evidence against Mr. Peltier, Mr. Robideau, and Mr. Butler is very similar, yet there has been a twenty four year difference in their treatment. Such an outcome is unacceptable.
Such disparate and selective treatment did not end with Mr. Peltier's conviction. Despite his remarkable record for humanitarian works from behind bars, he has been denied parole again and again. He has now served more years than recommended by Department of Justice guidelines, and more years than most persons incarcerated for the same or similar crimes.
Similarly, the vindictive nature of the official response, specifically of the FBI, to Mr. Peltier's situation continues to this day. Past and current FBI officers still oppose Mr. Peltier's request for parole and/or clemency in an abusive manner that is at times frightening. In our recent ethics complaint, we cite paid advertisements and public statements by FBI officers which are not only over-zealous but intentionally deceptive and inflammatory. By way of example, there are repeated insinuations that Mr. Peltier placed his gun to the heads of the wounded agents and pulled the trigger in cold blood. Such personal opinions cannot in good faith be presented as fact in light of the clear admissions from the U.S. Attorneys that no one knows who fired the point blank shots. Similarly, there are repeated declarations that Mr. Peltier was wanted for the attempted murder of a Milwaukee policeman, without any mention of the fact that Mr. Peltier was long ago acquitted, or the reasons for such acquittal. These abuses are set forth and analyzed in our Ethics Complaint. We also note FBI harassment and intimidation of Native peoples attempting to assist and support Mr. Peltier. Such conduct, continuing through a quarter of a century, serves to underscore the personal animus and vindictive nature of prosecution and ongoing incarceration of Mr. Peltier.
Peltier has now served more years in prison than recommended by Department of Justice parole guidelines.
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P.O. Box 2462
Santa Fe, NM 87504
November 1, 1999
From:
William F. Muldrow
Former Director (Retired)
Rocky Mountain Regional Office
U.S. Commission on Civil Rights
TO WHOM IT MAY CONCERN:
I have been asked to make a statement with regard to F.B.I. involvements on the Pine Ridge Reservation before and after the shooting of two agents there in June 1975. The U.S. Commission on civil rights as an independent, fact-finding agency of the Federal government, exercises its responsibility to collect and study information related to the denial of civil rights and make recommendations for corrective action.
A history of mistrust of the FBI for the traditional Indian people was intensified during the period following the occupation of Wounded Knee in 1973 when over 500 indictments resulted in dismissal or acquittal due to spurious actions by the FBI. An unprecedented climate of fear and terror gripped the Pine Ridge Reservation for the next three years, due in large part to tensions between the more traditional Indians and those who were more politically, or governmentally, oriented. These tensions were exacerbated during the regime of tribal president Dick Wilson and his vigilante, self-termed "goon squad." During this period there were over 60 unsolved murders on the reservation for which the investigatory responsibility lay with the FBI.
In one particular incident in Wanblee, a community on the reservation of more traditional Indian people, members of the goon squad arrived to shoot up the town, allegedly in retaliation for the community's resistance to Wilson's policies. One person was killed. FBI agents called to respond from their headquarters in Rapid City allowed the shooting to continue the entire night, stating that they were an investigatory, not an enforcement agency, thus heightening the perception on the reservation that the FBI had no sympathy for traditional Indian people.
It was in this climate of fear and tension in 1976 that the two FBI agents, in unmarked cars and clad in civilian clothes, were shot in a firefight. This occurred after they chased a pick-up truck into an isolated homestead that contained an Indian family with small children, and where there was a nearby encampment of American Indian Movement activists. Joe Stuntz, an Indian in the compound, was also killed during the shootout, but no charges or arrests were ever made in connection with his death.
Following the shooting, the reservation was turned upside down by the more than 300 combat-clad FBI agents, armored vehicles and helicopters that were sent in to find the perpetrators. The Commission on Civil Rights immediately began to receive calls from reservation residents regarding abuses by the FBI. As a Civil Rights Analyst for the Commission, I was sent up to observe and report on the happenings. Terror reigned. Roadblocks were set up and all vehicles were stopped and searched. There were reports of numerous incidents of isolated farmhouses being surrounded by military vehicles, with a helicopter overhead and the occupants ordered by megaphone to leave their homes. More first-hand accounts told of agents with automatic weapons breaking down doors to search houses without warrants.
In the period which followed Anna Mae Aquash, a Canadian citizen, who was seen as a key witness, and who was allegedly threatened and abused by the FBI, was found shot to death and her body dumped in a ravine. An FBI-ordered autopsy failed to reveal the large bullet wound in the back of her head, leading to more criticism of the FBI and their methods.
At the request of members of the Canadian parliament, who were upset over the extradition of Leonard Peltier to the United States under a false affidavit, and the alleged mistreatment of one of its citizens, the Commission on Civil Rights sent me as their representative to Canada to review the alleged abuses by the FBI that I have described above.
In memoranda to the U.S. Justice Department, the U.S. Commission on Civil Rights reported that the FBI was an extraneous force on the reservation whose agents often lacked any comprehensive understanding of Indian culture or traditions. It was noted that the FBI's actions and investigations were seen as biased, and were the source of much tension and controversy. The Commission recommended that the FBI be relieved of its responsibility to investigate felonies on the reservation. This recommendation was never implemented.
