Wednesday Writs: United States v. Leonard Peltier

The 1973 Wounded Knee occupation occurred during a particularly volatile time in relations between Native Americans and the United States government. It was just two years after the 71 day siege at Wounded Knee, in which 200 Sioux Indian activists took control of the town of Wounded Knee, South Dakota, and held its residents hostage in an attempt to make the government to honor treaties from the 17 and 18 hundreds, and to protest the corrupt tribal Chairman Dick Wilson, who was deemed more sympathetic to assimilated natives rather than traditionalists. The siege included the exchange of heavy gunfire and resulted in the death of two natives.

On that June day in 1975, Special Agents Jack Coler and Ronald Williams were the victims. At the scene of the shootout- if you could call it that, since the agents only got off five shots, while their assailants fired 125 times – authorities recovered in the open trunk of one of the agent’s cars a spent .223 shell casing. Trajectory showed that the casing likely landed in the trunk when one of the agents was shot. Evidence showed that the agents had been shot and were already wounded when their assailant approached and shot them both at point blank range. One of the two had a wound through his hand where he had attempted to shield his head from the gun.

More than two months later, a van exploded on the Kansas Turnpike near Wichita. At the scene of the explosion, authorities found Agent Coley’s .308 rifle, and an AR-15. The prosecution would claim that the AR-15 was the murder weapon. Three Indian men were charged in the agent’s murders, including Dino Butler, Robert Robideau, and Leonard Peltier, who had been in the truck stopped by Coley and Williams and believed the agents were looking to arrest him on an attempted murder warrant.

Butler and Robideau were arrested; Leonard Peltier fled. In Peltier’s absence, his codefendants were tried together and acquitted, to the outrage of the law enforcement community. Peltier was stopped months later, in a motorhome in Oregon. The motorhome was searched, and Agent Coler’s revolver was found. Peltier fled the scene, shooting at police, but was later apprehended in Canada. He was extradited after a legal fight and stood trial alone in our case of the week, United States v. Leonard Peltier, in 1977, before an all-white jury.

Having already had one bite at the apple in the Butler/Robideau trial, the government tweaked its case accordingly. The first acquittal hinged on the jury’s belief that tensions between the government and the Sioux Indians at Pine Ridge were such that the defendants’ claims of self defense were plausible; in Peltier’s case, the prosecutors successfully convinced the judge not to allow evidence of these conflicts to be admitted.

The prosecution presented eye witnesses, who claimed to have seen Peltier and the other two defendants approach the agent’s cars, though at least one of these witnesses had changed her story after first denying any knowledge of the incident. Another admitted his testimony against Peltier was the result of threats against him by an FBI agent and a promise of having his own pending criminal charges dropped. A third witness purportedly gave a statement to police while tied to a chair.

Most damningly, the government presented ballistics testimony that the casing found in the trunk matched the AR-15 — which, they said, belonged to Leonard Peltier. While the gun itself was too damaged in the van explosion to be fired, the bolt was removed, put onto another AR-15, which was then fired. The markings from this firing were used for comparison to the casing from the trunk, and it was determined the casing had been loaded and ejected by the bolt from the AR-15 they claimed belonged to Peltier. The jury convicted him in six hours. He was defiant at his sentencing, where he received two life terms, and began a long series of appeals.

His first round of appeals resulted in his conviction being affirmed by the 8th Circuit, cert denied by SCOTUS. But in 1980, a FOIA request by Peltier’s lawyers to the FBI revealed a series of teletypes in which the ballistics examiner, contrary to his testimony at trial, reported that no casing found was a match to the AR-15. Peltier filed a new round of appeals, arguing that this was exculpatory information withheld by the prosecution. The 8th Circuit agreed with the defense this time, and sent the case back for an evidentiary hearing. This hearing would be to determine whether the evidence withheld about the ballistics was in violation of the Brady doctrine- that the prosecution must turn over all evidence that is a)favorable to the defendant and b)material to the outcome of the case. The lower court held the hearing,  but determined that the evidence, even if presented, would not have changed the verdict of the jury and was thus immaterial. Peltier went back to the Court of Appeals to contest this finding.

The Eighth Circuit applied the standard set forth in US v. Bagley, a Supreme Court decision:

[C]onstitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial… The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.

…

The reviewing court should assess the possibility that such effect might have occurred in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken had the defense not been misled by the prosecutor’s incomplete response.

The Eighth Circuit had no trouble finding that the evidence was favorable to the defense. Turning to whether the evidence would have likely resulted in a different verdict, the Court pointed out that the government’s theory of the case caused a unnecessary issue. The prosecution insisted that Peltier fired the fatal shots, but they needn’t have been that specific; the Court felt that the evidence was clear that Peltier was at least involved in the shootout and could have been convicted on that alone. However, the Court had to apply the Brady/Bagley rules in the context of the actual trial.

The Court pointed out that, even at trial, there were inconsistencies in the ballistics reports. An October 1975 report stated that “none of the other ammunition components recovered at the [Pine Ridge] scene could be associated with [Peltier’s] AR-15.” A January 1976 report stated that testing showed that the .223 casing from the trunk had been loaded and ejected by the AR-15. Even prior to the October report, the lab had both the gun and the casing. While both reports were admitted into evidence at trial, the defense was not allowed to mention the dates of the reports or insinuate that some influence between October and February led to the revised opinion. The expert, Evan Hodge, testified at a post trial hearing that at the time of the October report, he had not yet gotten to the testing of the .223 casing, and claimed not to have any reason to know it was a priority for testing. But the documents released via FOIA in 1980 showed this to be, as they say, “counterfactual”. Included in the documents were communications between the FBI and Hodge the FBI specifically asked Hodge to test any .223 casings against the AR-15. Responses from Hodge confirmed, more than once, that no casing he had been provided matched the gun. A September communication specifically indicated that the FBI believed Peltier had killed the agents with the recovered AR-15, giving Hodge ample reason to know that the .223 casing was of special significance.

Why did the February report reach another conclusion? According to Peltier supporters, it was because after the Robideau and Butler acquittals, the FBI was intent on convicting someone, and Hodge must have been told that he needed to come up with a match. This seemingly falsified evidence would be the main source of allegations of a conspiracy and cover-up that led to the wrongful conviction and imprisonment of Leonard Peltier.

That’s a conviction and imprisonment that continues to this day, as the Eighth Circuit Court of Appeals did not believe that the new evidence, had it been available at trial, would have led to an acquittal, under the totality of the case (though the Court did express “discomfort” with the decision):

When all is said and done, however, a few simple but very important facts remain. The casing introduced into evidence had in fact been extracted from the Wichita AR-15. This point was not disputed; although the defense had its own ballistics expert, it offered no contrary evidence. Peltier raises general questions regarding the handling and examination of the .223 casing and the Wichita AR-15, but does not make specific allegations of tampering. There are only two alternatives, however, to the government’s contention that the .223 casing was ejected into the trunk of Coler’s car when the Wichita AR-15 was fired at the agents. One alternative is that the .223 casing was planted in the trunk of Coler’s car either before its discovery by investigating agents or by the agents who reported its discovery. The other alternative is that a non-matching casing was originally found in the trunk and sent to the FBI laboratory, only to be replaced by a matching casing when the importance of a match with the Wichita AR-15 became evident. We are not convinced that either alternative is likely.

It’s almost as if the Court can’t fathom the possibility of a law enforcement-led frame job- even though the Court alludes to other wrong-doing by the FBI during the investigation of the case, on which it declines to expound: “We recognize that there is evidence in this record of improper conduct on the part of some FBI agents, but we are reluctant to impute even further improprieties to them.”

The Court also discusses at length the tenuous connection between Peltier and the AR-15, there being no direct evidence to place it in his possession. The Court concedes that this fact, along with the additional evidence regarding ballistics, created the possibility that the jury may have acquitted Peltier. But as to whether it probably would have led to a different verdict, said the court, “we have not been so convinced.”

The Supreme Court never granted cert to Peltier’s case. For the last forty years, his has been a cause celebre for those who believe he was the victim of corruption and political animus. “Free Leonard Peltier” has been on posters, T-shirts, and even graffitii, and even A-list celebrities like Robert Redford have taken up the plight. On the other hand, some see him as a cop-killer whose conviction, regardless of how it was obtained, was just and he is where he deserves to be. He has been denied parole and has lost further attempts to appeal, as recently as 2006. President Obama was the most recent president to deny his application for clemency; his current application is pending before President Trump but is unlikely to be granted. His next parole hearing is in 2024.

There is much more to the Peltier case, including a 1979 prison escape, than can be contained within this space; it is highly recommended that an interested party seek out additional information from sources both in support of Peltier, and not. ¹

WW2: SCOTUS is taking up Trump’s attempt to end DACA. While a decision won’t come until next summer, observers say the conservative majority seems poised to rule against the dreamers.

WW3: The case against gun manufacturer Remington by parents of the Sandy Hook Elementary School shooting victims continues after the US Supreme Court rejected the company’s appeal of a ruling denying their motion to dismiss the lawsuit. While federal law protects gun manufacturers from wrongful death suits, the families have instead attacked the company’s marketing practices.

WW4: The lawsuit filed against HBO and John Oliver by thin-skinned coal baron Bob Murray is over, Murray loses his appeals. The crux of the suit: Oliver’s instruction to “eat shit, Bob.”

WW5: The man who stabbed the baby Trump balloon to death has raised over $40,000 on GoFundMe for his legal fees.

WW6: How and why Google is gathering your health data- and how and why it is legal.

WW7: Smart criminal of the week? After dying and being revived- five times-, a death row inmate says he has fulfilled his sentence.

WW8: A judge says he would consider a reduced sentence for a convicted rapist if he would pay his victim $150,000. This sounds like a very bad idea. Tellingly, the victim was not on board.

WW9: A woman sued a country club after a waiter accidentally spilled red wine on her $30,000 purse. In response, the restaurant filed a claim against the waiter, saying he should pay.

1. H/T to Twitter user @stanleyfosha for suggesting today’s Case of the Week.