The Injustice Department vs Leonard Peltier

By Peter Matthiessen

On July 27, 2009, I drove west from New York to the old riverside town of Lewisburg in central Pennsylvania, the site of the federal penitentiary where early the next morning I would make an appeal to the parole board on behalf of the American Indian Movement (AIM) activist Leonard Peltier in his first parole hearing in fifteen years. On this soft summer evening, a quiet gathering of Peltier supporters from all over the country had convened in a small park near the Susquehanna River. Despite his long history of defeats in court, these Indians and whites sharing a makeshift picnic at wood tables under the trees were optimistic about a favorable outcome. Surely a new era of justice for minorities and poor people had begun with the Obama administration, and anyway, wasn't Leonard's freedom all but assured by the Parole Act of 2005, which mandated release for inmates who had spent thirty or more years in prison?

Leonard Peltier, an Ojibwa-Lakota from Turtle Mountain, North Dakota, was one of the three young Indians who were among the participants in a shoot-out with the FBI at Oglala on South Dakota's Pine Ridge Reservation on a hot dusty day in June 1975. They were later charged with the deaths of FBI agents Jack Coler and Ron Williams. Ostensibly searching for a suspect in a recent robbery case, the agents had been warned by tribal police not to enter the property where the AIM Indians had their camp. Their intrusion apparently provoked a warning that led to an exchange of gunfire. Understandably outraged by the deaths of Coler and Williams and in particular by the fact that an unknown "shooter" had finished off both wounded men at point-blank range, their fellow agents would also suffer intense frustration and embarrassment when a dozen or more of the Indians involved, using a brushy culvert under a side road, escaped a tight cordon of hundreds of agents, Indian and state police, national guardsmen, and vigilantes who had the area surrounded.

More galling still, Bob Robideau and Dino Butler, two of the three AIM suspects in the killings arrested during the FBI's huge "ResMurs" (Reservation Murders) investigation, were acquitted a year later in Cedar Rapids, Iowa, on a plea of self-defense, as the third and last suspect, Leonard Peltier, would certainly have been as well, had he not fled to Canada. He was arrested there in February 1976, extradited back to the US, and tried separately. Though originally indicted with the others on identical evidence, he was barred by a hostile new judge, Paul Benson, from presenting the same argument based on self-defense that had led to Robideau and Butler's acquittal. Furiously prosecuted as the lone killer and convicted for both deaths on disputed evidence, Peltier was sentenced in February 1977 in Fargo, North Dakota, to two consecutive life terms in federal prison.

The following year, when Peltier's conviction was appealed, 8th Circuit Court of Appeals Judge Donald Ross denounced the coercion of witnesses and manipulation of evidence in his case as "a clear abuse of the investigative process by the FBI"; the US Attorney's Office, too, would be sharply criticized for withholding exculpatory evidence. In October 1984, in an evidentiary hearing in Bismarck, North Dakota, ordered by the appellate court to review the possibility of a new trial, the prosecutor, US Attorney Lynn Crooks, had to concede that the FBI's own laboratory had failed to verify the claimed ballistics link between Peltier and the murder weapon that was used to nail down his conviction—a shell casing of disputed provenance that Crooks had called "perhaps the most important piece of evidence in this case." Even so, Judge Benson refused to reconsider the conviction.

The following year when the decision was appealed again, Crooks finally admitted that the identity of "the shooter" had never been proven and was in fact unknown to the prosecution even when it was twisting the evidence to ensure Peltier's conviction and make certain that its third and last suspect—by its own description, "the only one we got"—was imprisoned for life. Yet the appellate court, while noting that so much tainted evidence had deprived the defendant of his constitutional right to due process of law, found "no compelling legal justification" for ordering a new trial.

In a TV interview after his retirement in 1989, Judge Gerald Heaney, who had signed that astonishing decision, called it "the most difficult I had to make in twenty-two years on the bench." The following year, in the National Law Journal, this troubled jurist held the FBI "equally responsible" for the deaths of its two agents; in a letter to Senator Daniel Inouye of Hawaii, he urged commutation of Peltier's sentence. Questioned on the same 1989 TV show about the perjured affidavits extracted by FBI agents from a frightened alcoholic, US Attorney Crooks declared: "I don't really know and I don't really care if they were false. I don't agree that we did anything wrong, but I can tell you, it don't bother my conscience one whit if we did." Properly outraged by this arrogant refusal to repudiate US government use of fabricated evidence, Senator Inouye, as a former US attorney, called Crooks "a disgrace to the profession."

I first interviewed Leonard Peltier in Marion Penitentiary in 1981, and that same year, with his original codefendant Bob Robideau, I inspected the Jumping Bull Ranch at Oglala where the shoot-out had taken place. Later, after reading many if not most of the pertinent documents, including the FBI field reports and the transcripts of both trials, I returned to Oglala to interview local people and study the scene again. Like the FBI, I would hear all sorts of rumors about the many young Indians involved without learning which one had fired the fatal shots; however there seemed to me no doubt whatever that Leonard Peltier had been railroaded into prison.

Unfortunately my long book making that case[*] was quickly suppressed by libel suits brought by South Dakota's attorney general, William Janklow, and an FBI agent named David Price. Eight years would pass before both suits were summarily dismissed and the book was back in circulation. Meanwhile Peltier's long fight for a fair trial had won his endorsement as a political prisoner by Amnesty International, and his thousands of supporters throughout the world included the Dalai Lama, Nelson Mandela, Desmond Tutu, and the great majority of his own people in the more than 250 Indian nations that had formally demanded his release.

In Peltier's first parole hearing in 1996, the examiner filed an internal recommendation in Peltier's favor. (The US Parole Commission, like the US Attorney's Office and the FBI, is under the aegis of the Justice Department: its examiner informs himself about the case, questions both sides, and appraises the new evidence, if any.) Yet in actions so belated and irregular as to raise suspicion of undue influence, the commission replaced that first examiner with one more to its liking and denied parole.

By then, the few bold lawmakers who had called for investigations had retreated or retired, and Peltier's best hope was executive clemency. To that end, I wangled my way into the Oval Office and pressed my book about the case into President Clinton's hands. In January 2001, during Clinton's last week in office, as FBI lobbyists—the Association of Retired FBI Agents and No Parole for Peltier—marched in front of the White House, I joined attorney Bruce Ellison and filmmaker Jon Kilik in a long meeting with the presidential and White House counsels in which we argued that granting clemency to an American Indian who could offer nothing in return was a bold symbolic step that could only enhance the President's last-minute efforts to prop up his legacy.

The lawyers seemed impressed and hopes were high, but when the clemency list appeared on the Saturday morning of Inauguration Day, Peltier's name was missing. The phone call I dreaded was put through from Leavenworth Prison in early afternoon. "They didn't give it to me," mumbled a stunned voice I scarcely recognized—the first time in twenty years of visits, letters, and telephone conversations that Leonard Peltier's strong spirit sounded broken. With all court appeals exhausted and no hope of mercy from the incoming Republican administration, this aging prisoner was condemned to wait for his next parole hearing in 2009.

In the park in Lewisburg, people agreed that had the shoot-out victims not been "FBIs," Leonard might never have been convicted; at the very least, he would have been paroled many years before. Someone in the park recalled the fear and disruption on the reservations caused by the FBI's huge ResMurs investigation (which was widely perceived as the latest chapter in the long history of oppression and revenge against "the redskins who killed Custer" that had led up to the shoot-out). The killing that day in June 1975 of a young member of the AIM by a marksman's bullet in the forehead had gone all but unmentioned, someone said, let alone investigated by "the Injustice Department," doubtless because "Injuns don't count." How about Bob Robideau's statement to an FBI man that he had been "the shooter"? Would the Parole Commission take that into account? And was it suspicious that Robideau had been found dead last February in Barcelona? (The official autopsy concluded that he had struck his head in a fall while suffering a seizure.)

With Peltier's attorney Eric Seitz and the two other parole advocates —Dr. Thom White Wolf Fassett, a Seneca elder and United Methodist adviser to Congress on Indian affairs, and an Ojibwa woman named Cindy Maleterre representing Peltier's Turtle Mountain Reservation—I went early the next morning to the prison, passing supporters waving "Free Peltier" signs at the entrance road.

In the hearing room the first to speak were the two sons of the late agent Jack Coler. After testifying to their family's great loss, they suggested that if this man facing them today were to take responsibility and express remorse for those brutal murders he so stubbornly denies having committed, the Coler family might not protest his parole. But the three FBI spokesmen and the assistant US attorney who spoke next were content to repeat the same vilifications and distortions of the facts that won a conviction back in 1977. Locked long ago into their ResMurs myth, they insisted that Peltier was still a danger to the public and cited those provisions in the Parole Act specifying that parole may be denied if the subject's release might "depreciate the seriousness of the offense" or "promote disrespect for the law."

In response to the charge that Peltier has evaded his responsibility for those murders, Eric Seitz countered that the FBI and the US Attorney's Office have evaded responsibility for their own illegal tactics in his prosecution. Otherwise Seitz made no attempt to retry a long historic case in a few minutes, emphasizing instead the prisoner's exemplary behavior record, serious health problems, and other strong qualifications for parole under the commission's geriatric and medical criteria. He reminded Examiner Scott Kubic that in a few weeks, on September 12, when Peltier would turn sixty-five, he would also become eligible for home detention under the new Second Chance program for elderly inmates designed to ease overcrowding in the US prisons.

Thom White Wolf testified that Peltier's incarceration for nearly thirty-three years has been viewed both nationally and internationally as a gross injustice and a major embarrassment to our country, with a negative effect on the world's view of how the US government treats its native population. When my turn came, I spoke to the points made in this article, adding how much this inmate had matured over the three decades of our acquaintance, not only as an articulate spokesman for his people but as an artist, self-taught in the prisons, whose work is admired through- out the US. And Cindy Maleterre assured the examiner that the prisoner's Ojibwa-Dakota people at Turtle Mountain—including grandchildren he has never seen—had already taken care of the parole requirements of social support, adequate housing, and steady employment (as an arts-and-crafts teacher and alcoholism counselor on the reservation), and were planning to welcome him home with a great feast.

That afternoon we left the prison with the feeling that Examiner Kubic had listened carefully and would recommend parole—a guarded optimism we conveyed to the flag-waving supporters awaiting our report on the public road. But no one forgot how the examiner's finding in Peltier's favor fifteen years before had been aborted; in the next weeks, as so often in the past, the prisoner would have to suffer the suspense of desperate hope.

On Friday, August 20, federal inmate #89637-132 received terse notice that his petition for parole had been denied: not until his "15-year Reconsideration Hearing in July 2024," he was informed, would he become eligible to be turned down again. In the unlikely event that he lives long enough to attend that hearing, Inmate Peltier will be eighty years old.

In his angry response, Attorney Seitz accused the commission of "adopting the position of the FBI that anyone who may be implicated in the killings of its agents should never be paroled and should be left to die in prison." I entirely agree with Seitz and share his anger. For the prisoner and his supporters, the Lewisburg hearing had been hollow, with a predetermined outcome: The United States v. Leonard Peltierhad always been a matter less of justice than of retribution.

Americans—those in public office especially—should inform themselves about this painful case and demand an unbiased investigation that might start with one simple question: If, in the thirty-three years since his trial, reputable evidence has ever emerged that Leonard Peltier was the lone killer and deserves to be in prison for life, why hasn't the Justice Department produced it?

Without public protest, Peltier will not be granted a fair hearing since his prosecutors know that in the absence of honest evidence, "the only one we got" would be set free. Instead, this man's life leaks away behind grim concrete walls for the unworthy purpose of saving face for the FBI and a US Attorney's Office that together botched the famous ResMurs case and mean to see somebody pay. And who better for this fate than a "radical" AIM Indian who dared stand up to "legally constituted authority" in defense of his humiliated people, as he was doing with such tragic consequences on that long-ago June day?

In reviewing this case with an open mind, as surely he must in fulfilling his oath of office, Attorney General Eric Holder (the assistant attorney general in 2001) might reflect on his own role in the clemency bestowed by Clinton on Marc Rich, the notorious "fugitive felon." He might consider, too, Rich's consequent evasion of even a single day in prison in the harsh light of the eleven thousand days already served by a penniless American Indian who remains innocent before the law, having never been proven guilty.

Note:

The Leonard Peltier Defense Offense Committee points out that "Amnesty International considers Leonard Peltier to be a political prisoner whose avenues of redress have long been exhausted....Amnesty International recognizes that a retrial is no longer a feasible option and believes that Leonard Peltier should be immediately and unconditionally released."

The LPDOC adds that "Documents show that although the prosecution and government pointed the finger at Peltier for shooting FBI agents at close range during the trial in 1976, for three years the prosecution withheld critical ballistic test results proving that the fatal bullets could not have come from the gun tied to Leonard Peltier. This trial also denied evidence of self defense."

The LPDOC further notes that "The U.S. Prosecutor, during subsequent oral arguments, stated: 'We can't prove who shot those agents' and the Eighth Circuit found that "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."

Judge Heaney who authored the denial, now supports Mr. Peltier's release, stating that the FBI used improper tactics to gain Mr. Peltier's conviction.

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