Appeal for the release of Leonard Peltier

Amnesty International is appealing for the release from prison of Leonard Peltier, an Anishinabe-Lakota Indian, who is serving two consecutive life-sentences for the murders of two Federal Bureau of Investigation (FBI) agents.

The FBI agents, Ronald Williams and Jack Coler, were shot at point-blank range after being wounded in a gunfight with Indian activists on the Pine Ridge Indian Reservation on 26 June 1975. Peltier fled to Canada. He was extradited to the USA and convicted of the murders in 1977.

Amnesty International has investigated this case for many years. Although Amnesty International has not adopted Leonard Peltier as a prisoner of conscience, the organization remains concerned about the fairness of the proceedings leading to his conviction and believes that political factors may have influenced the way in which the case was prosecuted.

Peltier is now in his twenty-second year of imprisonment and has exhausted all legal appeals against his conviction. He was denied parole (early release under supervision of the criminal justice system) in 1994 following a parole hearing in 1993 and his case will not be heard again via a full hearing by the Parole Commission until December 2008. Amnesty International has for some years been calling on the federal government to institute an executive review of the case but there is no evidence of any such action having been taken.

In view of Amnesty International's continuing concerns about this case, and the fact that available remedies have been exhausted, Amnesty International is now calling for Leonard Peltier to be released from prison through an act of presidential pardon.

Background and Summary of Amnesty International's Concerns

A summary of the case, describing the circumstances in which the agents were killed and Peltier's trial and appeals, is contained in the attached extract from Amnesty International's report USA: Human Rights and American Indians (AI Index AMR 51/31/92), entitled ''Other Cases of Concern: Leonard Peltier.''

As outlined in this document, Peltier was a leading activist with the American Indian Movement (AIM) whose members were involved in a campaign to protect traditional Indian lands and resources and had come into conflict with both the Pine Ridge tribal government and the FBI.

Two other AIM members, Darelle (Dino) Butler and Robert Robideau, were originally charged with the FBI agents' murder and were tried separately in 1976. They admitted being present during the gunfight but were acquitted on grounds of self-defence, after submitting evidence about the atmosphere of fear and terror which existed on the reservation prior to the shoot-out.

There is evidence that the government intensified its pursuit of Leonard Peltier after the acquittal of Butler and Robideau. Peltier was extradited from Canada partly on the testimony of Myrtle Poor Bear, an American Indian woman who signed a statement saying she had seen Peltier shoot the agents at close range.

Poor Bear, who was a notoriously unreliable witness, later retracted this statement as having been obtained under duress and said she had never even met Peltier. The prosecution did not use Myrtle Poor Bear as a witness at Peltier's trial. However, they introduced ballistics evidence which purported to show that it was Peltier's gun which killed the agents at close range after they were already wounded and disabled.

This evidence effectively prevented Peltier from being able to present the same self-defence argument which had resulted in the Butler/Robideau acquittals. However, serious questions have since been raised about the reliability of this ballistics evidence.

The government has continued to argue that, even if they can no longer prove that Peltier killed the agents, he is still guilty of ''aiding and abetting'' in the murders through being in the group involved in the exchange of gunfire from a distance. However, Amnesty International believes that the doubts which have been raised about Peltier's role in the actual killings of the agents undermine the whole case against him, as ''proof'' that he was the actual killer was a key element in the prosecution's case at the trial.

Amnesty International's concerns about various aspects of the case are outlined in a letter to the US Attorney General dated 23 June 1995, which is also attached to this action. These concerns include the following:

• The FBI knowingly used perjured testimony to obtain Leonard Peltier's extradition from Canada to the USA. The FBI later admitted that it knew that the affidavits of Myrtle Poor Bear, an alleged eye-witness to the murders, were false. This in itself casts serious doubt on the bona fides of the prosecution, even though Poor Bear's affidavits were not used at Peltier's trial.

• Leonard Peltier's attorneys were not permitted to call Myrtle Poor Bear as a defence witness to describe to the trial jury how she had been coerced by the FBI into signing false affidavits implicating Peltier. The trial judge refused to allow her to appear on the grounds that her testimony could be ''highly prejudicial'' to the government.

• Evidence which might have assisted Leonard Peltier's defence was withheld by the prosecution. This included a 1975 telex from an FBI ballistics expert which stated that, based on ballistics tests, the rifle alleged to be Peltier's had a ''different firing pin'' from the gun used to kill the two agents. At a court hearing in 1984, an FBI witness testified that the telex had been merely a progress report and that another bullet casing tested later had been found to match ''positively'' with the rifle linked to Peltier. However, the reliability of the government's ballistics evidence remains in dispute.

• The trial judge refused to allow the defence to introduce evidence of serious FBI misconduct relating to the intimidation of witnesses (the testimony of Myrtle Poor Bear). Had such evidence been presented, it may have cast doubt in the jury's mind about the reliability of the main prosecution witnesses, three young Indians (Anderson, Draper and Brown) whose testimony (that Peltier was in possession of an AR-15 rifle during the shoot-out) was the main evidence linking Peltier to the alleged murder weapon.

The United States Court of Appeal for the Eighth Circuit ruled in 1986 that the prosecution had indeed withheld evidence which would have been favourable to Leonard Peltier and would have allowed him to cross examine witnesses more effectively. However, it concluded that this had not materially affected the outcome of the trial, and it upheld Peltier's conviction.

However, the judge who wrote this opinion, Judge Gerald Heaney, has since expressed his concern about the case. In a 1991 letter to Senator Daniel Inouye, Chair of the Senate Select Committee on Indian Affairs, Judge Heaney expressed his belief that ''the FBI used improper tactics in securing Peltier's extradition from Canada and in otherwise investigating and trying the Peltier case. Although our court decided that these actions were not grounds for reversals, they are, in my view, factors that merit consideration in any petition for leniency filed''. He also stressed the need to take into account the background context to the fire-fight during which the two agents had been killed (see Amnesty International's letter to the Attorney General of 23 June 1995).

Further information on the case

Petition for clemency through an act of Presidential pardon

Peltier's lawyers filed a petition for a presidential pardon several years ago, urging President Clinton, who visited the Lakota Pine Ridge Reservation on 7 July 1999, to use his powers of pardon to commute the sentence. However, they have received no response and are not aware of any recommendation having been passed to the White House from the office of the Pardon Attorney (an office within the Justice Department which reviews the case before making a recommendation to the White House). Amnesty International has received several replies from the office of the Pardon Attorney since 1995, stating that Peltier's petition for commutation of sentence or clemency is still under review.

Parole application

The parole Commission decided at Peltier's last full, formal parole hearing in 1993 that his case would not be formally reviewed again for a further 15 years - setting his next parole hearing for December 2008. Since then there have been several interim hearings at which the Commission has refused to reconsider the decision to deny parole on the grounds that Peltier did not accept criminal responsibility for the murders of the two FBI agents. This is despite the fact that, after one such hearing, the Commission acknowledged that, ''the prosecution has conceded the lack of any direct evidence that you personally participated in the executions of the two FBI agents ...'' Peltier has always denied that he was involved in killing the agents.

In June 1999 Peltier's lawyers filed a habeas corpus petition in a federal district court, claiming that the parole board's decision not to hear the case again for 15 years was arbitrary and unconstitutional, and a violation of guidelines which should be applied to the case. The petition also states that changes in the laws and procedures relating to parole since 1975 have been wrongly applied retroactively in Peltier's case, meaning that he has been required to serve far longer in prison than was the case at the time of his conviction.

Peltier's medical condition

Leonard Peltier suffers from a congenital problem with his jaw, which has deteriorated during his imprisonment. At the present time, his jaw is reportedly frozen open at 13 millimetres and he has difficulty in eating as well as pain and discomfort. In 1996 he had two operations on his jaw at the US Medical Center for Federal Prisoners in Springfield, Missouri. However, these operations were not successful and his condition is alleged to have worsened.

Sentencing Statement of Leonard Peltier

June 1, 1977

THE COURT: C77-3003, United States of America versus Leonard Peltier.

Defendant and counsel, please come forward.

Mr. Peltier, do you know of any reason why sentence should not be passed in your case at this time?

DEFENDANT PELTIER: No legal reason, no.

THE COURT: Mr. Taikeff, do you know of any reason why sentence should not be passed in this case at this time?

MR. TAIKEFF: No, your Honor, I do not.

THE COURT: Mr. Peltier, do you desire to make a statement in your own behalf or present any information to the Court which the Court might consider in mitigation of punishment in your case?

DEFENDANT PELTIER: Yes I do.

Judge Benson, there is no doubt in my mind or my people's you are going to sentence me to two consecutive life terms. You are and have always been prejudiced against me and any native Americans who have stood before you. You have openly favored the Government all through this trial, and you are happy to do whatever the FBI would want you to do in this case.

I did not always believe this to be so. When I first {3} saw you in the courtroom in Sioux Falls, your dignified appearance misled me into thinking that you were a fair minded person who knew something of the law and who would act in accordance with the law which meant that you would be impartial and not favor one side or the other in this lawsuit.

That has not been the case, and I now firmly believe you will impose consecutive life terms solely because that's what you think will waive the displeasures of the FBI. Yet my people nor myself do not know why you would be so concerned about an organization that has brought so much shame to the American people, but you are. Your conduct during this trial leaves no doubt, that you will do the bidding of the FBI without any hesitation.

You are about to perform an act which will close one more chapter in the history of the failure of the United States Courts and the failure of the people of the United States to do justice in the case of a native American. After centuries of murder, of murder of millions of my people, brothers and sisters, by the white race of America could I have been wise in thinking that you would break that tradition and, commit an act of Justice? Obviously  not, because I should have realized that what I detected was only a very thin layer of dignity and surely of not fine character. {4}

If you think my accusations have been harsh and, unfounded, I will explain why I have reached this conclusion and why I think my criticism has not been harsh enough.

First, each time my defense team tried to expose FBI misconduct in their investigation of this lawsuit and tried to prevent evidence of this, you claimed it was irrelevant to this trial, but the prosecution was allowed to present their case with evidence that was in no way relevant to this lawsuit.

For an example, an automobile blown up on a freeway in Wichita, Kansas; an attempted murder in Milwaukee, Wisconsin, which I have not been found guilty or innocent of; a van loaded with legally sold firearms; and a policeman who claimed someone fired at him in Oregon state.

The Supreme Court of the United States tried to prevent convictions of this sort by passing into law that only past convictions may be presented as evidence if it is not prejudicial to the lawsuit and only evidence of the said case may be used.

This Court was very wrong. I have no prior convictions nor am I even charged with some of these alleged, crimes. Therefore, they cannot be used as evidence in order to receive a conviction in this farce called a trial.

This is why I strongly believe you will impose two {5} life terms running consecutive on me.

Second, you could not make a reasonable decision about my sentence because you suffer from at least one of three defects that prevent a rational conclusion. You plainly demonstrated this in your decision about the Jimmy Eagle, and Myrtle Poorbear aspects of this case.

In Jimmy's case, for some unfounded reason that only a Judge who constantly and openly ignores the law, would call it irrelevant to my trial.

In the mental torture of Myrtle Poorbear you said the testimony would shock the conscience of the jury and the American people if believed, but you decided what was to be believed and what was not to be believed, not the jury.

Your conduct shocks the conscience of what the American legal system stands for -- the search for the truth by a jury of citizens. What was it that made you afraid to let that testimony in -- your own guilt of being part of a corrupted pre-planned trial to get a conviction, no matter how your reputation would be tarnished?

For these reasons I strongly believe you will do the the bidding of the FBI and give me two consecutive life terms.

Third, in my opinion anyone who failed to see the relationship between the undisputed facts of these events surrounding the investigation used by the FBI in their {6} interrogation of the Navajo youths -- Wilfred Draper who was tied to a chair for three hours and denied access to his attorney or the outright threats to Norman Brown's life, the bodily harm threatened to Mike Anderson, and finally the murder of Anna Mae Aquash -- must be blind, stupid or without human feeling, so there is no doubt or little chance that you have the ability to avoid doing today what the FBI wants you to do which is to sentence me to two life terms running consecutively.

Fourth, you do not have the ability to see that the conviction of an AIM activist helps to cover up what the Government's own evidence showed, that large numbers of Indian people engaged in that fire fight on June 26th, 1975. You do not have the ability to see that the Government must suppress the fact that there is a growing anger amongst Indian people and that native Americans will resist any further encroachment by the military forces of the capitalist Americans which is evidenced by the large number of Pine Ridge residents who took up arms on June 26th, 1975, to defend themselves.

Therefore, you do not have the ability to carry out your responsibilities towards me in an impartial way and will run my two life terms consecutively.

Fifth, I stand before you as a proud man. I feel no guilt. I have done nothing to feel guilty about. I have {7} no regrets of being a native American activist. Thousands of people in the United states, Canada and around the world, have and will continue to support me to expose the injustice that occurred in this courtroom.

I do feel pity for your people that they must live under such a ugly system. Under your system you are taught greed, racism and corruption, and the most serious of all, the destruction of our mother earth. Under the native American system we are taught all people are brothers and sisters, to share the wealth with the poor and needy; but the most important of all is to respect and preserve the earth, to me considered to be our mother. We feed from her breast. Our mother gives us life at birth; and when it is time to leave this world, she again takes us back into her womb; but the main thing we are taught is to preserve her for our children and grandchildren because they are next who will live upon her.

No, I am not the guilty one here and should be called a criminal. The white race of America is the criminal for the destruction of our lands and my people. To hide your guilt from the decent human beings in America and around the world, you will sentence me to two consecutive life terms without any hesitation.

Sixth, there are less than four hundred Federal Judge for a population of over two hundred million Americans. {8} Therefore, you have a very powerful and important responsibility which should be carried out impartially, but you never have been impartial where I was concerned. You have the responsibility of protecting constitutional rights and laws; but where I was concerned you neglected to even consider my or native American's constitutional rights; but the most important of all you have neglected our human rights. If you were impartial, you would have had an open mind on all the factual disputes in this case; but you were unwilling to allow for even the slightest possibility that a law enforcement officer could lie on the stand. Then how could you possibly be impartial enough to let my lawyers prove how important it is to the FBI to convict a native American activist in this case? You do not have the ability to see that such a conviction is an important part of the efforts to discredit those who are trying to alert their brothers and sisters to a new trick from the white man, an attempt to destroy what little Indian land remains in the process of extracting our uranium, oil and other minerals.

Again, to cover up your part in this, you will call me a heartless, cold-blooded murderer who deserves two life sentences consecutively.

Seven, I cannot expect a Judge who has openly tolerated the conditions I have been jailed under to make an {9} impartial decision on whether I should be sentenced to concurrent or consecutive life terms. You have been made aware of the following conditions which I had to endure at the Grand Forks county jail since the time of the verdict.

One, I was denied access to a phone to call my attorneys concerning my appeal.

Two, I was locked in solitary confinement without shower facilities, soap, towels, sheets or pillow.

Three, the food was uneatable, what little there was.

Four, my family, brothers, sisters, mother and father who traveled long distance from the reservation were denied visitations.

No human being should be subject to such treatment while you parade around and pretend to be a decent, impartial and law-abiding.

You knowingly allowed your fascist Chief Deputy Marshal to play storm trooper.

Again, the only conclusion that comes to my mind is you have, and always knew, you would sentence me to two consecutive life terms.

Finally, I honestly believe that you made up your mind long ago that I was guilty and that you were going to sentence me to the maximum sentence permitted under the law, but this does not surprise me because you are a high-ranking member of the white racist American {10} establishment which has consistently said "In God we trust" while they went about the business of murdering my people and attempting to destroy our culture. The only thing I am guilty of and which I was convicted for was of being Chippewa and sioux blood and for believing our sacred religion.

THE COURT: Mr. Taikeff, do you have any statement to make in the Defendant's behalf or any information to present to the Court?

MR. TAIKEFF: I have nothing to add, your Honor.

THE COURT: Mr. Peltier, you have seen the pre-sentence report in this case?

DEFENDANT PELTIER: I have just glanced through it.

THE COURT: Do you have any comments or questions regarding it?

DEFENDANT PELTIER: I haven't read it.

MR. TAIKEFF: Counsel did read it in advance, your Honor --

THE COURT: (Interrupting) I beg your pardon?

MR. TAIKEFF: Counsel did read it in advance of showing it to the Defendant. Counsel did not find anything seriously inaccurate about it.

THE COURT: Mr. Hultman, does the United states have any recommendations or comments to offer?

MR. HULTMAN: May it please the Court, the Statute {11} has provided, for the taking of a life, the penalty, that that life likewise be taken.

In this instance, that statute and that law has been under consideration and its status -- has been in a questionable status for quite some time.

At the outset of this case, as the record indicates, I personally indicated that -- in the extradition proceedings that the Government would be bound, that that particular penalty could not and would not apply; and that is a part of the record today, of which I know the Court, I am certain, is aware.

That then means that the penalty which is left in effect is the minimum penalty under the law; and that is a life sentence which, of course, is a very, very serious sentence.

In this instance there was not one life which was taken, but two; and because of the prosecution that has taken place in the course of this trial, because that penalty does indicate that a life term is the minimum sentence in the case of a life being taken, it seems to me, your Honor, that is appropriate --

DEFENDANT PELTIER: (Interrupting) Who is going to pay for Anna Mae's death? It sure stinks. What do you want? Give me your best name. Who is going to pay for their deaths? You help me -- {12}

MR. CROOKS: (Interrupting) A lot of people would argue with that.

MR. HULTMAN: In the course of the taking of this particular life, your Honor, not one life was taken as far as this particular trial is concerned, but the taking of two; and it seems to me that in light of that, that consecutive terms would be appropriate.

THE COURT: Mr. Peltier, you were convicted as charged --

DEFENDANT PELTIER: (Interrupting) I was railroaded.

THE COURT: (Continuing) -- as charged in the indictments of two counts of premeditated murder. You were convicted and found guilty on each of those counts. The evidence is clearly sufficient to support the verdict of the jury.
You profess an interest and a dedication to the native people of this country, but you have performed a great disservice to those native people.

VOICE FROM AUDIENCE: Same to you.

DEFENDANT PELTIER: What about the Gestapo tactics being used on the Pine Ridge residents? What do you call that? The cold-blooded murder of Anna Mae Aquash, what do you call that?

VOICE FROM AUDIENCE: What about Joe?

DEFENDANT PELTIER: Are those two just being forgotten {13} about because they are native people?

THE COURT: On the verdict of the jury, it is adjudged that the Defendant, Leonard Peltier, has been convicted of the offense of first degree murder as charged in Count 1 and Count 2 of the indictment in violation of Title 18, United states Code, Section 2 -- Section 1111 and Section 1114.

It is further adjudged that the Defendant be committed to the custody of the Attorney General of the United States for imprisonment for life on Count 1.

It is further adjudged that the Defendant, Leonard Peltier, be committed to the custody of the Attorney General of the United states for imprisonment for life on Count 2, the sentence on Count 2 to run consecutively to the sentence on Count 1.

Mr. Hultman, is there anything more to be presented to the Court?

MR. HULTMAN: The Government has nothing further, your Honor.

THE COURT: Mr. Taikeff?

MR. TAIKEFF: Just one technical matter, your Honor.

The Clerk of the Court has provided me with a form, apparently supplied originally by the Court of Appeals for the Eighth circuit, which is basically a notice of appeal form. {14}

I have completed that form and signed it on the assumption that my Court appointment will continue on into the Eighth circuit, and I lodge that with the Clerk's office.

It will be served -- I understand the Clerk makes a copy of it and serves it upon the Government, and then it will be filed pursuant to my written request ¡ and I trust that I have, therefore, complied with all of the formalities to preserve Mr. Peltier's right of appeal.

THE COURT: You are advised, Mr. Peltier, that you do have the right of appeal; and if you were financially unable to pay the cost of the appeal, you can make application for appeal in forma pauperis.

MR. TAIKEFF: We make that application at this time, your Honor, to continue the finding of the Court of his status as a person without any financial means.

THE COURT: The application will be granted.

MR. TAIKEFF: Thank you, your Honor.

THE COURT: Is there anything more?

MR. TAIKEFF: Nothing at this time, your Honor.

THE COURT: Court is adjourned.

Verdict in the Leonard Peltier Trial

April 16, 1977

The jury may be brought in.

(Whereupon, at 4:40 o'clock, p.m., the jury returned to the courtroom; and the following proceedings were had in the presence and hearing of the jury:)

THE COURT:  The record may show that about 3:30 this afternoon the Court received a written note signed by Mr. Dallas Rossow, Foreman, which read as follows:

The jury has reached a verdict and is ready to deliver it.

Mr. Nelson, will you take the verdict?

THE CLERK:  The jury will please listen to the verdict as I read it and as it shall be recorded.

As to Count 1, Ronald A. Williams, the jury finds the Defendant guilty of first degree murder.

As to the killing of Jack R. Coler, Count 2, the jury finds the Defendant guilty of first degree murder.

Dated this 18th day of April, 1977.

Signed, Dallas Rossow, Foreman.

Would your Honor like me to poll the jury?

THE COURT:  Does the defense desire that the jury be polled?

MR. LOWE:  We would, your Honor, subject to my {5282} comments before. We would ask that the public be included when that is done.

THE COURT:  The Clerk will poll the jury.

THE CLERK:  Dallas Rossow, is this your verdict as I have read it?

JUROR ROSSOW:  Yes, it is.

THE CLERK:  Mrs. Peter Reiland, is this your verdict as I have read it?

JUROR REILAND; Yes, it is.

THE CLERK:  Mrs. Clayton Hokanson, is this your verdict as I have read it?

JUROR HOKANSON:  Yes, it is.

THE CLERK:  Arlene Josal, is this your verdict as I have read it?

JUROR JOSAL:  Yes, it is.

THE CLERK:  Ida Mickelson, is this your verdict as I have read it?

JUROR MICKELSON:  Yes, it is.

THE CLERK:  June Kopp, is this your verdict as I have read it?

JUROR KOPP:  Yes, it is.

THE CLERK:  Gerald P. Bommersbach, is this your verdict as I have read it?

JUROR BOMMERSBACH:  Yes, it is.

THE CLERK:  Victoria Haaland, is this your verdict as {5283} I have read it?

JUROR HAALAND:  Yes, it is.

THE CLERK:  Shirley Klocke, is this your verdict as I have read it?

JUROR KLOCKE:  Yes, it is.

THE CLERK:  Ralph McKay, is this your verdict as I have read it?

JUROR MCKAY:  Yes, it is.

THE CLERK:  Mrs. Irene Hoggarth, is this your verdict as I have read it?

JUROR HOGGARTH:  Yes, it is.

THE CLERK:  Mrs. Beverly Nielsen, is this your verdict as I have read it?

JUROR NIELSEN:  Yes, it is.

THE CLERK:  Your Honor, the verdict is unanimous.

THE COURT:  Very well.

A pre-sentence report is ordered, and sentencing will be set on a date to be determined by the Court.

Members of the Jury, it is now a real pleasure for me to advise that you are discharged and you may return home.

I will just add this:  That earlier this afternoon before I knew that you had reached a verdict, and of course, before I had any idea of what your verdict would be, I dictated a letter to each of you expressing the {5284} appreciation of the Court for the service that you have rendered. You will get that letter in the mail. Is there anything more to be presented to the Court at this time, Mr. Hultman?

MR. HULTMAN:  The Government has nothing, your Honor.

THE COURT:  Mr. Taikeff?

MR. TAIKEFF:  No, your Honor.

THE COURT:  The Court is adjourned.