Law’s Hopelessness, Part 1: Leonard Peltier’s 44-Year Ordeal

by Mary W Maxwell, LLB

For those who can remember back to the 1970s, the FBI’s program of COINTELPRO was outed by Congress. That would have been a good moment for the American people, so fond of First Amendment rights, to put a halt to the FBI. Well, we were too busy, getting Frequent Flyer points and other bennies, but now it has all caught up on us.

In a recent book review article at Gumshoe, I showed that books by Sidney Powell and Rachel Barkow that prove the absurdity and the meanness of our criminal justice system. The complaints include: overly severe sentencing and arbitrary parole. Both authors, however, stated that prosecutors who break the law, such as by violating Brady,  get off without even a reprimand. The Brady rule is honored in the breach most of the time — government hides exculpatory evidence from the defense. Both authors criticized the Judges, too.

I was perusing the case of Leonard Peltier and noted the Brady problem but also noted the recalcitrance of all parties when certain persons are incarcerated. Among the guilty: Freedom of Information Officers who protect crime in government; judges who won’t let the accused argue the merits; plain old persecution of indigenous people by the FBI (I think that is one of their main missions — they do it to African Americans, too, with gusto); and presidents who, in a case where you would be 100% sure they will grant clemency, act like they are mysteriously prevented from signing the paper.

This article will first recap, in the words of ILPDC, (International Leonard Peltier Defense Committee) the event 44 years ago that led Peltier to be imprisoned. He is still imprisoned, and in very bad conditions, at a great distance from his family.

The Shootout

“On June 26, 1975, two agents of the Federal Bureau of Investigation (FBI)—Mr. Jack Coler and Mr. Ron Williams—entered private property on the Pine Ridge reservation, the Jumping Bull Ranch. They drove unmarked vehicles, wore plain clothes, and neglected to identify themselves as law enforcement officers. They allegedly sought to arrest a young Indian man, Jimmy Eagle, for the theft of a pair of cowboy boots.

“For unknown reasons, a shoot-out began. A family with small children was trapped in the crossfire. Throughout the ranch, people screamed that they were under attack and many of the men present hurried to return fire. The more than 30 men, women, and children present on the ranch were then quickly surrounded by over 150 FBI agents, Special Weapons and Tactics (or SWAT) team members, Bureau of Indian Affairs police, and local vigilantes.

“Continuing with its long tradition of manipulating the media—placing articles in the popular press that put the Bureau in a positive light and interfering in the publication of “dissident” writings by persons such as Rev. Martin Luther King, Jr.—the FBI immediately set about disseminating gross inaccuracies about this case. Agents Coler and Williams, the FBI claimed, had been murdered in “a cold-blooded ambush” by a large force of trained guerillas in “sophisticated bunkers” and “fortifications,” but not before Williams had first pleaded for their lives for the sake of Coler’s wife and children.

How the Bureau developed this information about Williams’ last words in the absence of anyone who could have heard them was unclear. Other reports indicated that the agents’ bodies had been “riddled with bullets.” Then FBI director Clarence Kelley was forced to retract these statements when reporters—who had been barred from the Jumping Bull property for two days following the shoot-out—began to discover the truth.”

— End of report from ILPDC — International  Leonard Peltier Defense Committee.

Incredible Persistence in a Belief That Courts Hold Some Relief

From that day to this, which is 44 years on, Peltier’s lawyers have followed the letter of the law in seeking justice. Any and all institutions let them down. Two Bush presidents, a Clinton, and an Obama, and now Trump, seem paralyzed in the face of popular demand to send the prisoner home before his imminent death.

Please try to figure out what the stumbling block is. Undoubtedly any of the judges mentioned could have used the law in Leonard’s favor instead of against him.  This is like what Gumshoe uncovered in regard to Family Law in Australia.  Where is the individual cop or magistrate or bureaucrat who can contribute ordinary feeling and humanity to the situation?  Is everyone in a trance?

Here now is the chronology — a report of all the legal comings and goings.  I took it straight from the indigenous rights group Kola and the International Peltier Forum and greatly abridged it — though it is still quite long.

Note: Kola is the Lakota word for friend.  http://users.skynet.be/kola/lpchrono.html)

September 2, 1975: In the midst of a new flurry of unexplained murders of AIM members and supporters, the FBI raids the home of medicine man Leonard Crow Dog, spiritual leader of the Wounded Knee takeover, and arrests Darrel “Dino” Butler – another escapee from the Oglala firefight — along with Crow Dog himself and activist Anna Mae Aquash. Neither of the latter were at the Oglala firefight. The FBI threatens Anna Mae with death unless she gives false testimony against Peltier and others from AIM. [Don’t you love it?] She refuses.

September 10. 1975: A station wagon driven by Bob Robideau, another fleeing escapee, explodes near Wichita, Kansas. From the wreck the FBI discovers a badly burned AR-15 rifle – claiming without any proof whatsoever: 1) that it was the weapon that killed the agents; and 2) that it was Peltier’s own rifle. This weapon, and the shell casings supposedly from it, were among the key evidence later used against Peltier in his trial.

October 1975: FBI lab reports – not revealed until they were obtained years later through the Freedom of Information Act- state that the Wichita AR-15 rifle “contains a different pin than the rifle used at the Jumping Bull scene”, thus flatly disproving that the Wichita rifle was the murder weapon. This and other pieces of exculpatory evidence were hidden away by the prosecution

November 25, 1975: Four men are indicted by a federal grand jury for their alleged role in the deaths of the two FBI agents. The four are: Leonard Peltier, Bob Robideau, Dino Butler, and Jimmy Eagle (the young man suspected of stealing the pair of cowboy boots whose theft allegedly brought the two FBI agents to the Jumping Bull property the day of the firefight). [Oh please.]

February 6, 1976: Peltier is arrested by the Royal Canadian Mounted Police on the Rocky Boy Reserve in western Canada.

February 24, 1976: The decomposed body of “Jane Doe” is found in a gulley on Pine Ridge. The BIA coroner reports the victim died of exposure to cold. Her hands are cut off and sent to the FBI headquarters in Washington DC for “positive identification”, while they could easily have taken her fingerprints on the scene. [Never heard that one before.]

March 5,  1976: “Jane Doe” is identified by the FBI as Anna Mae Aquash, the AIM activist who had refused, despite FBI death threats, to give false testimony against AIM.

March 11, 1976: Anna Mae Aquash’s family from the Micmac Reservation in Nova Scotia, Canada, has her body exhumed from Pine Ridge burial. A new coroner discovers a “detail” the BIA coroner had unaccountably missed: she had been shot in the back of the head at close range. Her death leaves a mystery being actively explored to this very day.

March 31,  1976: Still trying to find convincing evidence of Peltier’s guilt so as to gain his extradition from Canada, FBI agents show photographs of Anna Mae’s severed hands to a confused Native American woman, Myrtle Poor Bear, telling her both she and her daughter face a similar fate unless she co-operates. Under duress, she signs an affidavit the FBI wrote for her, stating that she is Peltier’s girlfriend – though she had never met him – and also claims she saw him shoot the agents – though, as the FBI knew, she was never there.

December 16,  1976: Peltier is extradited from Canada to the USA on the basis of false testimony fabricated by the FBI.

Judge Benson rules all evidence must be tightly limited to events of the day of the shootout: June 26, 1975. No mention is allowed of the Reign of Terror preceding the shootout at Pine Ridge, nor of Myrtle Poor Bear’s false affadavits; nor of the FBI intimidation and coercion of witnesses, nor of most of the evidence that had led to the acquittal by reason of self-defense of Robideau & Butler. The judge declares: “The FBI is not on trial here”. Peltier is not permitted to claim self-defense.[????????]

July 20, 1979: Fearing an imminent assassination attempt, Peltier – with fellow Native American prisoner Bobby Garcia – climbs over a perimeter fence and escapes from Lompoc prison. Dallas Thundershield attempting to support Peltier, is shot in the back and killed by prison guards. Bobby Garcia is quickly captured, but Peltier escapes and eludes a huge manhunt until he is finally recaptured in a farmer’s field, five days later. At the subsequent trial for the escape, he is not allowed to use fear of assassination as a defense. Seven years are added to the original double-life sentence.

February 4, 1980: Peltier is transferred back to Marion, IL. He now believes the whole Lompoc “assassination” story was a setup to get him to attempt an escape, giving guards an excuse to kill him.

December 13, 1980: Bobby Garcia is found dead in a prison facility at Terre Haute Federal Penitentiary, Indiana. Authorities claim he hanged himself. Many are convinced he was murdered.

May 22, 1985: Even though the original prosecutor, Lynn Crooks admits the government does NOT know who killed the FBI agents, Judge Benson denies Peltier’s appeal for a new trial.

June 1985: Peltier is transferred to USP Leavenworth in Kansas.

September 11,  1986: Peltier’s conviction is affirmed by the U.S. 8th Circuit Court of Appeals, despite acknowledgement of clear FBI misconduct.

April 18, 1991: Senior Judge Gerald Heaney of the 8th Circuit Court panel that denied Peltier’s 1986 appeal, now – having left the Court – writes to the U.S. President that evidence of unlawful misconduct by the FBI and other governmental agencies before, during, and after the Fargo trial persuades him that Leonard Peltier deserves executive clemency.

[Now we are 17 years from the event]

December 15,  1994: The European Parliament passes a unanimous resolution supporting executive clemency for Peltier.

March 22, 2000: Dr. Keller at the Mayo Clinic, MN, reports that x-rays of Peltier’s jaw were taken. The x-rays showed that Leonard has ankylosis on both sides of his jaw, meaning that his jaw is totally frozen. Dr. Keller performs a 5-hour surgery on Peltier, and returns his jaw to a complete working condition. Peltier receives proper medical treatment at long last. On the other hand, he has been tortured for four years from a condition that could have been fixed in five hours. Prison officials had been saying for over a year that his condition did not warrant x-rays, a second opinion, or any treatment at all. [Our action] shows that enough pressure from concerned individuals and human rights groups can have a positive effect.

November 2000: The FBI Agents Association and the Society of Former FBI Agents organize a telephone campaign to the White House in an attempt to discourage a grant of executive clemency for Peltier. Combined, the two organizations have membership in the tens of thousands.

FBI Director Louis Freeh recommends that President Clinton deny the request for clemency. Freeh tells Clinton such an act would “signal disrespect” for law enforcement.

December 15, 2000: Nearly 500 current and retired FBI agents march to the White House in an unprecedented protest, opposing any presidential clemency for Leonard Peltier. Carrying a “Never Forget” banner lettered in red, a line of women stand 2-by-2 for the march to the White House gate with a petition to President Clinton signed by 8,000 current and former agents. This FBI protest is totally inappropriate, and it is a sad day for democracy when armed forces march through the streets to influence a decision for mercy and justice by a civilian president.

March 22,  2002: U.S District Court Judge Magnison, ND, denies Peltier’s motion to reduce his sentence without a hearing based upon issues of timeliness. Such a motion is supposed to be filed within a year following a conviction. However, Peltier’s attorneys argue that filing at this late date is justified because of significant developments that occurred since trial, citing cases in which exceptions had been made due to extraordinary circumstances.

April 4, 2002: Former FBI director Louis Freeh is named as a defendant in a lawsuit filed by Peltier’s attorneys. Freeh, along with the FBI Agents Association and a long list of active FBI agents, are accused of violating Peltier’s constitutional rights by making false and unsupported statements … and alleges that the FBI “engaged in a systematic, and officially sanctioned campaign of misinformation and dis-information” designed to prevent Peltier from receiving fair clemency and parole reviews.

May, 2002: For over a year now, Leonard has been quietly enduring a bone spur in his heel. He received two cortisone shots which had no effect. He is forced to work at the Unicor furniture factory, the federal prison labor operation, where he must stand on his feet all day, which causes severe pain.

The Leavenworth warden has denied a request for treatment at a Kansas City hospital.

July 9, 2002: Leonard Peltier has an interim parole hearing. The Commission can do one of three things: affirm the original decision to deny parole and leave the next full hearing date in 2008 in place (the most common scenario); accelerate or postpone the next full hearing date; or grant parole (the rarest scenario). And as was feared: again parole is denied.

September 9, 2002: Alvina Robideau – Leonard’s mother passes away in the early morning in Oregon. Leonard Peltier is not allowed to attend the funeral.

July 14, 2003:. Leonard seeks to overturn the U.S. Parole Commission’s refusal to even consider him for parole until December 2008. The normal Parole Commission guideline for prisoners convicted of homicide offenses is 200+ months served. This means that Leonard should have been released from prison over one decade ago.

February 6, 2006: It is exactly 30 years ago that Leonard Peltier was arrested in Canada…[Today it is 43 years]

April 28, 2006: The U.S. 8th Circuit Court of Appeals rules that the U.S. government had the right to prosecute American Indian activist Leonard Peltier for crimes that occurred on a South Dakota reservation. In this latest appeal, Peltier’s lawyers argued that federal courts have no jurisdiction over Indian land.

In the summer of 2005, U.S. District Judge Ralph Erickson ruled that the government has the right to prosecute and imprison anyone who kills federal agents, no matter where the crimes occur. [A highly unconstitutional claim; see the good old Sixth Amendment.]

June 17, 2006: Peltier’s legal team files a brief with the United States Second Circuit Court of Appeals in Manhattan, NY. Put simply: the U.S. government would not be fighting so hard to keep these documents secret unless it has something to hide!

August 31,  2006: On September 8, 2006 at 9:30 a.m., Barry A. Bachrach, Esq. and Michael Kuzma, Esq. will be arguing before U.S. Magistrate Judge Susan R. Nelson for the full release of all FBI files…. [as] the FBI paid informants to infiltrate Mr. Peltier’s defense team.

Tom Byron, attorney with the U.S. Department of Justice in Washington D.C., argues that “there is no support” for an in-camera inspection of the records.

January 13, 2009: Leonard Peltier is brutally beaten by two other inmates while arriving in general population at USP Canaan. Leonard is placed in solitary confinement, allegedly for his “protection”.

January 19, 2009: In the final days of his Administration, President George W. Bush formally denies Leonard Peltier’s request for executive clemency.

January 20, 2009: Inauguration of President Barack Obama. Leonard Peltier’s supporters immediately start a campaign to ask the new president to grant clemency. [No joy.]

January 25, 2009: All week long, Leonard Peltier has not had a medical examination after the beating, nor was he allowed a visit from his lawyers.

June 27, 2011: Leonard Peltier is placed in solitary confinement (the “hole”). He was preparing to eat breakfast the morning of June 27th when guards entered his cell: [T]his officer reviewed a letter being sent by inmate Peltier… In this letter, inmate Peltier has enclosed a banknote of 20 pounds, in Scottish currency. In the enclosed letter, inmate admits to receiving the banknote in the mail. It is obvious that inmate Peltier was in possession of money that was not authorized.

Peltier received a letter the previous day from a supporter in Scotland that contained a 20-pound note and had been inspected by the mailroom. Peltier had asked the mailroom to send back the enclosed money, but this request wasn’t followed up. He then addressed a letter to a friend and enclosed the note so as to send the money out of his cell and out of the prison, knowing that possession of unauthorized money was a violation of prison rules.

May 5, 2015: KOLA writes to US General Attorney Loretta Lynch asking for an Executive Review of COINTELPRO-politically motivated cases, starting with the case of Leonard Peltier without delay.

September 14,  2015: KOLA receives an answer from the Office of Professional Responsibility (US Dept. of Justice). The OPR decided that our allegations are unsupported and that they do not warrant further investigation.

— End of chronology by Kola

Comment by Mary Maxwell

“The OPR decided that our allegations are unsupported and that they do not warrant further investigation.”  That is straight out of South Australia’s playbook.  Many of the items listed above are absolutely familiar to us at Gumshoe — from the case of Martin Bryant, the family court custody cases, the trial of Jahar Tsarnaev, and so forth. Possibly there is justice when government is not one of the parties before a judge, but it is now clear that the judiciary is not independent of the DoJ prosecutors.

Statement by Peltier, published by Levi Rickert:

Greetings Family, Friends and Supporters Feb. 6, 2018

I AM OVERWHELMED THAT TODAY FEB. 6TH IS THE START OF MY 43rd YEAR IN PRISON.

I have had such high hopes over the years that I might be getting out and returning to my family in North Dakota.

I don’t want to sound ungrateful to all my supporters who have stood by me through all these years. I dearly love and respect you and thank you for the love and respect you have given me.

But the truth is I am tired and often my ailments cause me pain with little relief for days at a time. I just had heart surgery and I have other medical issues that need to be addressed: my aortic aneurysm, that could burst at any time, my prostate and arthritis in my hip and knees.

I do not think I have another ten years, and what I do have, I would like to spend with my family. Nothing would bring me more happiness than being able to hug my children, grandchildren, and great-grandchildren.

I’ve been part of Native resistance since I was nine years of age. My sister, cousin and I were kidnapped and taken to boarding school. This incident and how it affected my cousin Pauline, had an enormous effect on me. This same feeling haunts me as I reflect upon my past 42 years of false imprisonment.