United States v. Leonard Peltier

To the Editors:

On Monday, June 12, in a hearing before the parole officer at Leavenworth Prison, attorneys Ramsey Clark, Carl Nadler, and Jennifer Harbury filed a request for parole for the Native American leader Leonard Peltier, whose immediate release from prison is strongly supported by Amnesty International (which recognizes Peltier as a political prisoner), by the Kennedy Memorial Center on Human Rights, and by 250 Indian tribes represented by the National Congress of American Indians. The request is also supported by the Assembly of First Nations tribes of Canada; by Nobel laureates Desmond Tutu and Rigoberta Menchú, by Nelson Mandela and his Holiness the Dalai Lama, and by many other responsible political and religious leaders, including one of Peltier’s own judges on the Federal Court of Appeals for the Eighth Circuit.

Leonard Peltier has already served twenty-three hard years behind bars for the alleged murder of two FBI agents, Ron Williams and Jack Coler, at Oglala on Pine Ridge Reservation, South Dakota, on June 26, 1975. This young man, aged twenty-seven, who had no violence on his record, was part of a group of between twelve and twenty young supporters of the American Indian Movement (AIM) who took part in defending a local community against harassment by two agents who had entered private property for disputed reasons, despite strong warnings not to do so from the tribal police. Peltier escaped to Canada but was captured and extradited a few months later, largely on the basis of fabricated depositions from Myrtle Poor Bear, who was alleged by the prosecution to be his girlfriend and an eyewitness to the killings. She confessed before his trial that she had never laid eyes on Mr. Peltier in all her life.

Meanwhile, two other young Indians, Darrell Butler and Robert Robideau, indicted originally with Peltier on identical evidence and charges but tried separately in his absence, were entirely acquitted in federal court in Cedar Rapids, Iowa. (“The jury agreed with the defense contention that an atmosphere of fear and violence exists on the reservation,” the jury foreman said, “and that the defendants arguably could have been shooting in self-defense.”) Had Peltier not escaped to Canada—had he been tried with his two companions—he would never have served a single day in prison.

Peltier’s trial, arbitrarily removed from Cedar Rapids, was turned over to Judge Paul Benson, a Nixon appointee and former state attorney general in Fargo, North Dakota. Meanwhile, some peculiar new evidence had been produced by the FBI and assistant US attorney Lynn Crooks. This included strange testimonies that directly contradicted some of the prosecution’s own evidence in the Cedar Rapids trial and also a last-minute ballistics test that seemed to tie the defendant to the murder weapon. Most of this evidence would later be shown to be false, but the crippling restrictions on defense testimony imposed by Judge Benson in the 1977 trial (for example, he refused defense attempts to bring prosecution witness Poor Bear to the witness stand after the prosecution had sensibly declined to do so) and an inflammatory summation by prosecutor Crooks would win the day for the United States. Duly convicted on two counts of first-degree murder, the defendant was sentenced to two consecutive life terms in federal prison.

We know of no Native Americans who take pride or satisfaction in the tragic violence at Oglala that June day; the Pine Ridge Lakota Sioux and thousands of other Indian people who have supported Peltier so loyally and strongly at trials and hearings over two decades would not have done so if they thought him guilty of the cold-blooded killings charged by the prosecution. Mr. Peltier has repeatedly expressed regret about the needless loss of those young men as well as concern for all their families. “I pray for those agents’ families,” he has said, “just as I pray for the families of all the Indian people who died brutally on our reservations”—including the young AIM Indian Joe Stuntz who also lost his life on that June day, and whose execution (he was found shot between the eyes) was never investigated.

This man—rarely mentioned in official documents—was among the sixty-four or more traditional people and AIM supporters who met violent ends on Pine Ridge Reservation in the three dark years that led up to the shoot-out, mostly at the hands of FBI-supported vigilante Indians who opposed the AIM. Though the federal government has jurisdiction over capital crimes committed on the reservations, none of these Native American deaths was seriously investigated; nor were any of the malefactors arrested and indicted—all too clearly, as their people say, because “Indians don’t count.”

That the victims’ colleagues were outraged by the deaths of Mr. Coler and Mr. Williams is understandable—the two young agents were executed at point-blank range after being incapacitated during the shoot-out—and no one denied that swift justice must be done. Unfortunately, the vast “ResMurs” investigation that, from the start, terrorized the reservations, and also the ensuing prosecution by the US Attorney’s Office, seemed less concerned with justice than with vengeance. During Peltier’s hearings on appeal, his judges on the Eighth Circuit Court of Appeals (St. Louis) repeatedly criticized the FBI and the prosecution for abuse of the judicial process.

In 1982, these magistrates, still troubled by the coerced Poor Bear fabrications and the rickety ballistics evidence, listened to oral arguments for a new trial, then ordered an evidentiary hearing (in Bismarck, North Dakota, October 1984) which clearly established that the ballistics evidence had indeed been manipulated to establish Peltier as the lone killer: a key document from the FBI lab, unlawfully withheld from the defense, demonstrated unequivocally that the weapon allegedly used by Peltier during the shoot-out could not be linked to a bullet casing found near the bodies which Crooks had called “perhaps the most important piece of evidence in this case.”

Judge Benson, unbudging in his view that justice had been done in the case of United States v. Leonard Peltier, refused to order a new trial, and once again (in 1984) his ruling was appealed before the circuit court. By now, the uneasy prosecution was referring to Peltier not as the lone killer but as an aider and abettor, and Judge Gerald Heaney reminded Crooks that in his summation at the Fargo trial he had pointed at Peltier as “the man who came down and killed those agents in cold blood.” Pressed on this point by Judge Donald Ross, Crooks blurted in frustration, “But we can’t prove who shot those agents!” At last the truth was out.

In its decision in 1985, the appeals court concluded that the prosecution had “withheld evidence from the defense favorable to Peltier [which] cast a strong doubt on the government’s case” and acknowledged the possibility that had this evidence been brought forth, the jury might have voted for acquittal. Even so, astonishingly, the high court held that these circumstances fell short of the judicial standard required in ordering a new trial.

Judge Heaney, who wrote this finding, remained so troubled by the fabrications and manipulated evidence that in a television interview in New York in 1989, after his retirement, he would call it “the toughest decision I ever had to make in twenty-two years on the bench.” On the same program, Crooks loudly refused to repudiate US government use of fabricated evidence: “I don’t agree that we did anything wrong but…it don’t bother my conscience one whit if we did!”

This amazing statement from a Justice Department officer outraged Senator Daniel Inouye. “I was a US Attorney once,” he fumed one day in his office in the Capitol, “and that man is a disgrace to the profession!” In the National Law Journal (June 26, 1990), Judge Heaney would observe that the FBI was “equally responsible” for the deaths of its agents; on April 18, 1991, in a letter to Senator Inouye which also noted that Peltier had already endured fourteen years in prison, the judge urged commutation of his sentence as a way of beginning a “healing process” in the long bitter relationship between the US government and its native peoples.

Those fourteen years cited by Judge Heaney have extended remorselessly to twenty-three, as the prisoner ages and grows ill,¹ and still the Department of Justice and the White House fail to act on a clemency petition filed seven years ago, in November 1993, by Ramsey Clark, although Peltier’s cause is strongly supported not only by his own people but by the great majority of American citizens who have informed themselves about his case—almost everyone, in fact, except Prosecutor Crooks and the FBI. Nearly a quarter-century after locking him away, these avengers who admit they never proved who killed those agents continue to pit the United States against Leonard Peltier, still brandishing the same old allegations—that Peltier had a violent record, for example, including previous assaults on other law officers; that he has no support from his own people; that his guilt for the murders has been firmly established; that “he openly states he feels no guilt or remorse or even regret for the murders.”² These long-disproven slanders are being spread in a frantic effort to deny the one man they put in prison the fair hearing that might win him parole or clemency before he dies. The FBI and its Agents Association are currently spending many thousands of tax dollars lobbying congressmen, the White House, and the media, including numerous letters to the editor from Bureau personnel and large paid attack ads in The Washington Post (which otherwise ignores the Peltier story):

In an extraordinary step, FBI officials across the nation are mobilizing to prevent a presidential pardon for Leonard Peltier, the American Indian activist imprisoned for murder whose claim of innocence has inspired a two-decade protest movement on his behalf. FBI officials in Milwaukee say they fear that Peltier…will be freed by President Clinton on his way out of office.³

Three months ago, in March, I had a phone call from a lawyer who has never been involved in the Peltier case but was aware of my longtime concern. A friend in the Justice Department had just mentioned to him that the FBI was intensifying its anti-Peltier vendetta within the department, with Associate Deputy Attorney General David Margolis as the point man. In recent days, this friend informed him, Mr. Margolis had gone to the Attorney General’s office to reiterate the Bureau’s case, and he was followed there by Director Louis Freeh, who had taken the trouble to bring with him the lurid photos of the agents’ bodies at Oglala.

Could it be that these men sense that colleagues at Justice may be growing embarrassed, questioning the ethics as well as the vindictiveness of their campaign? What are they so afraid of, unless it is the truth? Could that truth be hidden in the six thousand pages of evidence pertaining to the ResMurs investigation that the Bureau still refuses to release under the Freedom of Information Act, citing “national defense” considerations—this in reference to a tragic episode on a dusty reservation farm a quarter of a century ago in South Dakota? Is it national security which is threatened here or the protections of our Constitution, not to speak of the nation’s reputation for democracy and justice, which is stained more deeply with each passing year that this man’s life is wasted in prison?

On June 12 of this year, Mr. Peltier came up for parole, as he has regularly since 1993. Not surprisingly, his release was fought on a new Internet site that calls itself NPLP (No Parole for Leonard Peltier) and parrots the same old allegations, but the efforts of this outfit were quite unnecessary. Even before entering the hearing room at Leavenworth, Mr. Peltier reports, he was told by a guard, “Man, they ain’t gonna give it to you.” He knew that, of course; in December 1995, when the parole officer had recommended a favorable decision, that recommendation was filed away for months and months by the US Parole Commission in Washington and then denied.

Mr. Peltier had long since met all reasonable criteria for a favorable decision by the parole board; indeed, by the board’s own rules and guidelines, he was perhaps more qualified than any other prisoner at Leavenworth. Yet, in an echo of the FBI’s Catch-22 propaganda, the board regularly demands that the prisoner express remorse for his guilty role in the death of the two agents which he has denied for twenty-three years and which even his prosecutor admits was never proven. (As Jennifer Harbury points out, to withhold parole because the prisoner won’t admit to a crime that he denies committing is another unlawful violation of due process.)

This time, the Leavenworth parole officer, having heard out the prisoner’s attorneys, turned them down flat, mainly on the grounds that Peltier’s version of events did not correspond with the FBI version for which he was convicted; he scarcely glanced at the five boxes of letters and endorsements from around the world, or even the medical evaluations. The final decision must of course be made by the US Parole Commission (which could spare the administration and the Justice Department a hot potato in an election year by the simple expedient of granting justice).

Why is the US government still prosecuting this defendant a quarter-century after it imprisoned him? And why is the media so incurious about the reasons? As American writers, we urge the Commission—and the administration and the Justice Department—to consider Mr. Peltier’s petitions with a fair and open mind, in the spirit of healing that Judge Heaney recommended a decade ago in urging commutation in this case.

Peter Matthiessen
E.L. Doctorow
Kurt Vonnegut Jr.
William and Rose Styron