Today Leonard Peltier has been incarcerated over 33 years. It also marks approximately nine years since Leonard Peltier received significant national attention and support when it appeared that former President William Clinton intended to grant Mr. Peltier clemency, only to see Mr. Clinton bow to the pressure of an unprecedented propaganda campaign conducted by the Federal Bureau of Investigation, and the resulting disillusionment and deflation of supporters who worked so hard and truly believed that former President Clinton would do the right thing. So, with the many issues and causes facing our society today, just why should the continuing incarceration of Leonard Peltier be a matter of significant concern to all Americans. The answer should be obvious: as Americans, each and every one of us must be outraged when Federal Appellate Courts acknowledge that Mr. Peltier’s case was fraught with Government misconduct and injustice, and yet neither the Courts, the Executive Branch, nor Congress take any action to correct a situation that tears at the fabric of our Country.
The acknowledgments of Government wrongdoing by the Courts are damning. As recently as the Fall of 2003, the United States Court of Appeals for the Tenth Circuit stated:
Much of the government’s behavior at the Pine Ridge Reservation and in its prosecution of Mr. Peltier is to be condemned. The government withheld evidence. It intimidated witnesses. These facts are not disputed.
When the Government was forced to produce documents previously withheld, the United Court of Appeals for the Eighth Circuit repeatedly recognized specific instances of FBI misconduct: “There is evidence in this record of improper conduct on the part of some FBI agents....” Indeed, the Eighth Circuit concluded that the FBI withheld critical ballistics evidence which raised questions "regarding the truth and accuracy of [the FBI’s ballistic’s expert] Hodge's testimony." The Eighth Circuit discussed this critical evidence which was withheld by the FBI as "newly discovered evidence indicating [that the government's ballistic expert] may not have been telling the truth," and concluded that the evidence withheld by the FBI created "inconsistencies casting strong doubts upon the government's case."
The Eighth Circuit made that statement over twenty years ago and one would think that Mr. Peltier would have received a new trial at a minimum. But, despite recognizing the misconduct, the Eighth Circuit provided absolutely no relief to this man who sits in prison even though the Court acknowledged serious doubts about his guilt. This is even more troubling when one considers that this Country’s criminal “justice” system is based on the presumption of innocence and the requirement that the Government prove guilt beyond a reasonable doubt to overcome that presumption. One would certainly assume that, if the Government misconduct could have caused serious doubt in the minds of the jury, then Mr. Pelier should be free. Yet, he sits in prison.
The Eighth Circuit, as did the Tenth Circuit, also addressed the Government’s coercing of witnesses and extracting perjurious affidavits and testimony from, among others, a woman known as Myrtle Poor Bear. Despite knowing Poor Bear was incompetent, in order to extradite Mr. Peltier from Canada, the FBI had her sign affidavits which falsely stated that she was Peltier's girlfriend and that she saw Peltier kill Agents Coler and Williams. However, it is undisputed that she never even knew Peltier, and she was never even at the scene of the shoot-out on June 26, 1975.
The Eighth Circuit recognized that "[t]he Poor Bear....testimony was certainly consistent with [Peltier's] theory [that the FBI framed him by manufacturing evidence and inducing witnesses to testify in accordance with its theory of the murders.]" Then, in addressing the Poor Bear testimony at oral argument, United States Attorney Evan Hultman tried to minimize the Government’s role in presenting the testimony stating that “[t]he affidavits were accepted on their face as being statements of a witness who was present...who is testifying in the affidavit under oath as to what it was she saw.” Judge Ross of the Eight Circuit excoriated the Government:
Judge Ross: But anybody who read those affidavits would know that they contradict each other. And why the FBI and prosecutor’s office continued to extract more to put into the affidavits in hope to get Mr. Peltier back to the United States is beyond my understanding.
Mr. Hultman: Yes.
Judge Ross: Because you should have known, and the FBI should have known that you were pressuring the woman to add to her statement.
While Hultman denied having involvement in the preparation of these affidavits, document subsequently acquired under FOIA clearly demonstrate that he committed a fraud on the Court because he, in fact, chose which affidavits to present to the Canadian authorities and which to conceal. In a memorandum dated May 10, 1979, Robert L. Keuch, Deputy Assistant Attorney General for the United States government, wrote: "It was upon Halprin's recommendation with concurrence of the Special Prosecutors Evan Hultman and Robert Sickma, that only Myrtle Poor Bear's second and third affidavits were used in the Peltier extradition." This letter responded to a request from the Canadian Department of Justice in which "the Canadian authorities requested information concerning the submission of two out of three affidavits furnished by Myrtle Poor Bear to the Canadian Government when it was known that the first affidavit was inconsistent with the two that were forwarded."
Most troubling is the fact that officer’s of the Court were not troubled by the Government misconduct. This is evidenceds by AUSA Crooks’ admission on television that it did not bother him if the Government fabricated evidence to acquire a conviction. When asked about the use of the fabricated testimony at the trial of Leonard Peltier, by a television reporter (Steve Kroft) in connection with a show entitled “West 57th Street,” in 1992, Assistant U.S. Attorney Lynn Crooks, who prepared the Government's case against Leonard Peltier, said:
It doesn't bother my conscience one bit... He got convicted on fair evidence. Doesn't bother my conscience one whit. I don't agree that there's anything wrong with that, and I can tell you, it don't bother my conscience if we did.
So, why should we care about the fate of Leonard Peltier. His fate represents what can happen to any of us if we allow the Government to convict a person by utilizing wrongful tactics and by trammeling upon our basic rights. Any injustice diminishes the rights of each of us. At what point are we going to stand up and shout enough. It could happen to any one of us. If it does, then it is too late to cry out against injustice. The time is now, before we find ourselves in the kafkesque world in which Leonard Peltier lives.
Submitted by Barry A. Bachrach, Esquire
