FINALLY A POSSIBLE BREAKTHROUGH!
A LEGAL MOTION IS FILED IN A REQUEST TO RE-OPEN LEONARD
PELTIER'S SECOND APPEAL FOR HABEAS CORPUS
On Monday, May 15, 1995 lawyers for Leonard Peltier filed an
unprecedented legal motion in the federal Eighth Circuit Court of
Appeals in a direct request for the re-opening of his appeal for a
new trial. With all legal avenues seemingly exhausted since the
dismissal of his third and latest appeal on July 7, 1993, it is
extraordinary that his case is being re-introduced back into the
United States judicial system on the grounds of a mistake that has
sat on record and uncorrected for the past 10 years.
In 1986 during Leonard's second appeal, the testimony of a
government prosecution witness, Norman Brown, which placed Leonard
at the agents' cars during the shoot-out, was erroneously taken
into consideration by the three-panel judges and could likely have
been a prime factor in the ruling against Leonard. Although Brown
gave his testimony before a grand jury, he recanted at trial,
testifying that he had been coerced by the FBI to lie. This
misconception was neither corrected by Mr. Peltier's attorneys or
the government. The court's final ruling dismissed the appeal by
what judges determined was the distinction between a "possibility
and a probability," as they required probable grounds to agree to
the appeal and determined they found only "possible" grounds.
Leonard was convicted on April 18, 1977 for the deaths of two
FBI agents and sentenced to two consecutive life sentences. The
testimony of a government ballistics expert was later completely
contradicted when Leonard's defense introduced previously
suppressed evidence which stated that a rifle linked to him could
not have shot the fatal bullets. The Eighth Circuit Court of
Appeals stated that key, exculpatory ballistics evidence had been
"withheld from the defense." No eyewitness has ever placed Leonard
near the bodies of the two agents. Government prosecutors have
admitted in open court that they "don't know who killed the
agents" and yet Leonard Peltier has served almost 20 years of
false imprisonment.
A decision to re-open the appeal will likely take several
months, but could be as early as June. Meanwhile, Leonard's
clemency request is still pending and we are asking people to
phone, fax and send their letters to President Clinton and to U.S.
Attorney General Janet Reno. Write to: President
Bill Clinton, Executive Office of the President, The White House,
1600 Pennsylvannia Ave., Washington, D.C. U.S.A. 20500. Fax at
(202) 456-2461. To Janet Reno, Attorney General, Dept. of Justice,
10th & Constitution, Washington, D.C. U.S.A. 20530. Fax: (202)
514-4371.
For more information, contact the LPDC, P.O. Box 583,
Lawrence, Kansas, U.S.A. 66044; (tel: (913) 842-5774; Fax: (913)
842-5796.
CANADA UPDATE:
In Canada, the federal government's review of Leonard's
illegal extradition in 1976 is still in process. It is extremely
important to keep up with letters to Allan Rock, the justice
minister of Canada urging him to agree to an independent review.
Earlier this year, Mr. Rock asked Warren Allmand, Chair of the
Parliamentary Justice Committee, to give his opinion of the
"Peltier file," after his personal review. (Mr. Allmand, a
long-time liberal M.P., whose party is now in government, is a
long-time supporter for Leonard's freedom.) To this end,
arrangements are presently being made for our Canadian attorneys
to assist by reviewing the file at the end of June.
Any decision by the Canadian government is not expected until
late this year and we have communicated the hope together with
people from around the world, that Canada would set an
international example by registering its strong objection to U.S.
authorities over their mishandling and abuse of the extradition.
(The government could also demand Leonard's return to Canada,
which is part of the overall strategy to put pressure on the
United States. The demand also suggests that undermining a formal
agreement between two nations, ie: the fraudulent abuse by the
United States government and the FBI of its extradition treaty
with Canada is an unacceptable disrespect of sovereignty of
another country and violates the rights of Leonard Peltier.)
Write to the Justice Minister of Canada, The Hon. Allan Rock,
Room 448, Confederation Building, House of Commons, Ottawa Ontario
Canada K1A OA6 Or fax your letters:(613) 992-6106.
For more information, contact the LPDC-Canada, 43 Chandler
Dr., Scarborough, Ontario Canada (tel/fax: (416) 439-1893; E-mail
to web/apc networks: lpdccfd@web.apc.org).
Law Office of
KUNSTLER AND KUBY
13 Gay Street New York, N.Y. 10014 (212) 924-5661 Fax (212)
691-3204
WILLIAM M. KUNSTLER
Staff: Sue Bailey Ronald L. Kuby Rosa Maria de la Torre Gavrielle
Gotama
May 12, 1995
FOR RELEASE ON MONDAY MORNING, MAY 15, 1995
Leonard Peltier, a Native American who is serving two
consecutive life sentences for the murders of two FBI agents on
the Pine Ridge Indian Reservation on June 26, 1975, will, on May
15, 1995, file a motion with the United States Court of Appeals
for the Eighth Circuit for the opening of his appeal.
The reasons for such an application are contained in the
attached papers.
Peltier was one of four Native Americans accused of these
crimes. Two of his co-defendants were acquitted in 1976 in Cedar
Rapids, Iowa, to which their cases, as well as that of Mr.
Peltier, had been transferred because of anti-Indian prejudice in
the Dakotas, while charges against a third were dismissed for lack
of evidence. After the Cedar Rapids acquittals, Peltier's case was
mysteriously transferred to Fargo, North Dakota, and assigned to a
judge known to be extremely prejudiced against Native Americans.
On April 18, 1977, he was convicted by a Fargo jury of the
two homicides. Later, it was discovered that the FBI had
unlawfully suppressed a firearms report stating that a rifle
attributed to him could not possibly have fired the fatal bullets
and which totally contradicted the trial testimony of an FBI
firearms expert.
Now, the appellate court which affirmed his convictions on
the basis of
a misconception that a prosecution witness had placed the
defendant near the dead agents' cars on the day of the homicides,
an impression that was not corrected by either his lawyers or the
government, is being asked to open the appeal.
Mr. Peltier is represented by William M. Kunstler and Ramsey
Clark of New York, N.Y., both affiliated with the Center for
Constitutional Rights, a New York-based legal and educational
foundation, Carl Nadler of Washington, D.C., W. Lee Hill of La
Jolla, California, and Bruce Ellison of Rapid City, S.D.
For further information, plese contact Lisa Faruolo at the
Peltier
Defense Committee, (913) 842-5774, or this office.
_____________________________________________________________________________
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH JUDICIAL CIRCUIT
--------------------------------------------------
UNITED STATES OF AMERICA
v.
No. 85-5192
LEONARD PELTIER,
Appellant.
---------------------------------------------------
MOTION TO OPEN
Upon the affidavit of Ronald P. Lessard and the affirmation
of William M. Kunstler, both duly executed the 18th day of April,
1995, and all the proceedings heretofore had herein, appellant
respectfully moves this Court to permit the opening of his appeal
for the purpose of presenting new and significant material as set
forth in the aforesaid affidavit of Ronald P. Lessard, whether
the within application is styled or designated as a motion
therefore or for a Writ of Error Coram Nobis, which could result
in the Court's reconsideration of its decision of September 11,
1986, affirming appellant's conviction, or for such other and
further relief as may be just and proper in the premises.
Dated: New York, N.Y.
April 1995
Lawyers
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
--------------------------------------------------
UNITED STATES OF AMERICA
v.
No. 85-5192
LEONARD PELTIER,
Appellant.
-------------------------------------------------- RONALD P.
LESSARD, being duly sworn, deposes and says:
1. I am a member of the Leonard Peltier Defense Committee and
in charge of the Washington, D.C. office thereof, which is
designated as the Leonard Peltier Freedom Campaign.
2. I have been engaged in such activity since November of
1994, and I have made it a point to study all of the legal
and other materials relating to Mr. Peltier's case.
3. In March of 1995, I telephoned Senior Circuit Judge Gerald
W. Heaney in Duluth, Minnesota, who had authored the first
two of the opinions in Mr. Peltier's appeals to the United States
Court of appeals for the Eighth Circuit.
4. During the conversation, I asked Judge Heaney whether
there was anything else that could be done legally for Mr.
Peltier. He replied that he thought, in his second appeals, that
Mr. Peltier had changed his version of what happened on the day of
the killing of the two FBI agents on the Pine Ridge Indian
Reservation.
5. He told me that he thought that Mr. Peltier had originally
maintained that he had not been down near the agents' cars
when they were shot. Now, he said, he understood that the trial
evidence showed that he was indeed down at the cars at that time,
a fact that, in his opinion, made all the difference to him. He
recommended that I review the past proceedings in this case when I
maintained that something was wrong if he understood that Mr.
Peltier's position had changed to state that he was down at the
cars but had fired in self-defense. He further stated that he
couldn't understand why the defense had changed as indicated
above.
6. As a result of this conversation, I listened to a tape of
the oral argument of the second appeal in 1985. During that
argument, Judge Heaney questioned William M. Kunstler, Mr.
Peltier's appellate attorney, about the fact that Norman Brown, a
government witness, had testified "of having seen Peltier and
Robideau and Butler at the scene at the automobile."
(footnote:) (1. This tape was made by Mr. Peltier's supporters and
is available for the Court's consideration if it desires to check
the accuracy of the quoted material in this affidavit. Every
effort has been made to quote accurately from that tape.")
7. Judge Heaney asked Mr. Kunstler: "At what point did the
defense first become aware of the September 24th, 1975,
teletype, that outlined in some detail the interviews between
Brown and the FBI agent? Mr. Kunstler replied that "(W)hen the
Freedom of Information Act material, "79...80, prior to filing our
habeas. It came with FOI Act material."
Judge Heaney: The teletype had not been made available to the
defense at any time before that, right?
Mr. Kunstler: That is correct. It is, uh...I call it FOIA or
Freedom of Information Act material, and that came via that
lawsuit. I don't know the exact date but it came long after this
court affirmed the conviction.
Judge Heaney: In that memorandum...Brown speaks of having
seen Peltier, Robideau and Butler at the scene of the automobile.
Mr. Kunstler: That is correct. It is, uh...I call it FOIA or
Freedom of Information Act material, and that came via that
lawsuit. I don't know the exact date but it came long after this
court affirmed the conviction.
Judge Heaney: In that memorandum...Brown speaks of having
seen Peltier, Robideau and Butler at the scene of the automobile.
Mr. Kunstler: Near the agents' cars, that correct.
Judge Heaney: Near the agents' cars. And he said that he
specifically
recalled that Leonard Peltier was armed with an AR-15 or an M-16.
Mr. Kunstler: That's correct.
8. Under further questioning by Judge Heaney, Mr. Kunstler
mistakenly agreed with him that Brown did indeed so testify.
Judge Heaney: Now, I know... was Brown called as a witness?
Mr. Kunstler: Yes.
Judge Heaney: And did he substantiate the testimony...uh...at
trial that
he gave, uh, that was ...
Mr. Kunstler: He did, except...
Judge Heaney: Summarized in this.
Mr. Kunstler: He did, except that he said it had been
extorted out of
him, he'd been tortured...
9. Unfortunately, neither Judge Heaney nor his two colleagues
were informed that Norman Brown had not testified at the
trial that Mr. Peltier was down at the cars when the agents were
shot, but that such testimony was only given before the grand
jury.
Q. In the grand jury you testifed that you saw Leonard and
Dino and Bob down by the cars, isn't that a fact?
A. Right.
* * *
Q. Did you ever see Leonard and Dino and Bob down by the cars
on June 26th, 1975?
A. No.
Trial Transcript, Pp. 4808-09
* * *
Q. When you testified before the grand jury that you saw
Leonard and Bob and Dino down by the agents' cars, where did you
get that information from?
A. FBI.
Q. Did you ever see that on June 26th, 1975?
A. No.
Trial Transcript, P 4812.
10. Despite this testimony, Judge Heaney, again during oral
argument, stated: "But let me put to you this way, you still
have the testimony of some eye witness, albeit under duress, that
you have attempted to point out who testified that they saw
Peltier, Robideau and Butler at the automobile and that these
people were shot at a short range, with a high velocity weapon,
and Brown testified that, while he was watching there, he heard
three shots. Now, how do we, how do we get around that because you
exposed the duress that Brown and the other witnesses were..."
11. Mr. Kunstler then replied that "there were scores of
other people there, too, and we have indicated in the
footnote in our original brief... there were scores of people down
there and I mean scores, there were names given, the material we
got from the Bureau shows, and a lot of which was suppressed, that
there were scores of other leads. This we raised on direct appeal,
there were scores of those people there."
12. However he failed to rebut Judge Heaney's observation
about Brown and mistakenly let it stand uncontradicted in the
record.
13. Judge Heaney consistently accepted the untrue fact that
Brown had placed Mr. Peltier, along with Butler and Robideau,
down at the cars when the agents were shot and Mr. Kunstler did
nothing to dispel that misconception. Toward the end of the
latter's presentation, Judge Heaney said: "...these two Indians
were positively identified by Brown, were Darrell Dino Butler and
Leonard Peltier. Brown at this time redirects his attention
towards responding officers and shortly thereafter hears
approximately three shots (when) the agents' vehicles were fired
upon." Mr. Kunstler replied: "Shortly after, I think that's what
we all recall. And when you look at the briefs, you'll find that
there were literally scores of people around the vehicle."
14. There were no transcripts of either Mr. Peltier's trial
or that of Robideau and Butler available to the court up to
and including the oral argument. Your deponent has no knowledge as
to whether the court was ever furnished the transcripts in
question.
15. If indeed Judge Heaney was mistaken as to the nature of
Brown's testimony at the trial and this error played any role
in his decision deying Mr. Peltier a new trial, then simple and
elemental justice would mandate a reopening of this appeal for
further consideration by the Court. Mr. Peltier has been
incarcerated some nineteen years and this Court has already found
that the FBI was guilty of considerable misconduct during his
prosecution and that the trial judge committed serious and
significant evidentiary errors. A misconception by this Court of
the evidence below relating to Norman Brown might well have tipped
the scales against appellant in an extremely close case.
______________________________________________________________________________
_____________________________
RONALD P. LESSARD
Sworn to before me this
18th day of April, 1995
______________________________ Notary Public
UNITED STATES COURT OF APPEAL
FOR THE EIGHTH JUDICIAL CIRCUIT
------------------------------------------------
UNITED STATES OF AMERICA
v
No. 85-5192
LEONARD PELTIER,
Appellant.
------------------------------------------------
STATE OF NEW YORK
COUNTY OF NEW YORK
WILLIAM M. KUNSTLER, an attorney duly admitted to practice as
such in the courts of the State of New York and admitted pro hac
vice in this Court, hereby affirms, under the pains and penalties
of perjury, as follows:
1. I have been associated with appellant as appellate counsel
for almost twenty years and I am submitting this affirmation
in support of the relief prayed for in the accompanying Motion.
2. I have been long convinced that this Court has agonized
over this case and that its decison of September 11, 1986,
reported at 800 F.2d 772 (8th cir. 1986) cert. den. 484 U.S. 822
(1987) affirming his convictions was rendered with considerable
misgivings and uncertainty. That uncertainty may well be augmented
by the Supreme Court's recent decision in Kyles v. Whitley, No.
93-7927, 57 CrL 2003 (4/19/95), reversing a Louisiana death
penalty conviction because of the withholding by the prosecution
of Brady material, not dissimilar to what happened to appellant as
previously determined by this Court. The majority opinion
discussing the "(F)our acts of materialty," under United States v.
Bagley, 473 U.S. 667 (1985), might well compel this Court to
reconsider its reliance on its analysis and interpretation of
Bagley in deciding appellant's 1985 appeal, 800 F.2d at 774-75.
3. I also know that Senior Circuit Judge Gerald W. Heaney
has, in a letter dated April 18, 1991, since recommended in
writing to the President, through Senator Daniel Inouye, that
appellant's sentences be commuted, stating that the FBI was as
guilty as appellant in the events of June 26, 1975, on the Pine
Ridge Indian Reservation that led to the agents' deaths and that
of native American Joseph Stuntz.
4. There can be no doubt that, as stated in this Court's said
opinion that "the prosecution withheld evidence from the
defense favorable to Peltier," 800 F.2d at 775, "the district
court's evidentiary ruling clearly hampered the defense in its
efforts to point out inconsistencies in the ... lab reports,"
Ibid. at 777, fn. 8, and "there is evidence in this record of
improper conduct on some FBI agents..." Ibid. at 778.
5. The court also determined that the testimony of trial
witnesses "indicate very strongly that he (Peltier) was down
by the bodies when the shot was fired. These inferences were of
course strengthened by the trial testimony that Leonard Peltier
was one of the only three individuals seen down by the bodies that
day." 800 F.2d at 779 (emphasis added).
6. During oral argument on October 15, 1985, Senior Circuit
Judge Heaney questioned me as set forth in the accompanying
affidavit of Ronald P. Lessard (Lessard).
7. Because I had not tried appellant's case, I did not
correct Judge Heaney as to his mistaken assumption that
Norman Brown had testified at Mr. Peltier's trial and placed him
down at the cars at the time the agents were shot to death. I must
take full responsibility for my failure to do so but my error
should not, in the slightest, be permitted to prejudice a
defendant who has spent so much of his adult life in prison.
8. However, I had no idea that Judge Heaney would give this
assumption such significance in reaching his decision to
affirm appellant's convictions. It was only when Mr. Lessard
recently revealed to me the contents of his recent telephone
conversation with Judge Heaney that I realized that my failure to
respond correctly to his questions about Normon Brown left the
distinct impression that the defense agreed that the latter had
testified at the trial that appellant was down by the cars when
the agents were fatally wounded. Incidently, the government did
nothing to correct the record on this score.
9. I have listened to the tape recording of oral argument and
verified that I failed to inform Judge Heaney that Brown had
not testified at the trial but only before the Grand Jury. In
fact, at trial he stated that he had never seen appellant near the
cars at the crucial time.
10. Had I known how strongly Judge Heaney, and perhaps the
entire bench, felt that Brown had put appellant down by the
cars, I would have raised this issue years ago. When I listened to
Mr. Lessard, I relaized that my answers to Judge Heaney during
oral argument regarding Norman Brown's alleged testimony were not
only incorrect but served to convince him that Mr. Peltier was,
along with co-defendants Robideau and Butler, present at the place
where the agents were shot to death.
11. There comes a time in the life of every human being,
official or otherwise, when he or she must, as Circuit Judge
John Wisdom once remarked "grasp the nettle." Singleton v. Jackson
Municipal Separate School District, 348 F.2d 729, 730 (5th Cir.
1965). This is indeed such a time and Judge Heaney now must, in
the name of essential decency, search his memory and conscience.
Leonard Peltier must not be permitted to end his days in custody
if, in truth, his appeal was decided on a basic misconception. I
take full responsibility for not furnishing Judge Heaney with the
correct information about Norman Brown's real testimony at
appellant's trail and I could not live with myself if I did not
exert my energies to do what I now can to end appellant's torment.
12. If Judge Heaney was influenced by his belief that Norman
Brown had testified at appellant's trial that he had seen the
latter down by the cars at the time of the agents' deaths, then he
owes it to himself, Mr. Peltier, and our professed standards of
fair play to now come forward and own up to a crucial
misconception that tipped the scales against my client.
13. Circuit Judge Heaney and his colleagues now have the
power to do more than merely urge that appellant's sentences
be commuted, something that has not occured and probably will not
occur during the present administration, but to stand up and say,
if it be true, that the panel took into consideration in reaching
its decision a misconception that seriously affected and flawed
it. Honorable, sensitive, and caring human beings can do no less.
14. I do not know the precise nature of the available relief
but Mr. Lessard was informed by a court clerk that, while a
motion for reargument was not proper, one to reopen he appeal
would lie. I am certain that, in view of Mr. Peltier's long period
of incarceration and the justice of his cause, a suitable remedy
could be framed by the Court, including the granting of an
evidentiary hearing and/or oral argument.
15. No prior application for the relief sought herein, other
than as indicated by the record, had been made to this or any
other court.
Dated: New York, N.Y. May 12, 1995
___________________________________________________________________________
STATEMENT OF LEONARD PELTIER FOR PELTIER WEEKEND '95
GREETINGS MY DEAR FRIENDS & SUPPORTERS,
It is hard for me to believe that today is the twenty year
anniversary of the Oglala firefight, twenty years later and the
inequity is still unresolved. My heart aches to remember the
suffering and the fear under which so many of my people were
forced to live. My heart breaks to remember so many lives lost.
Two decades have passed and still there is no justice.
I will never forget the fear I had for my own two babies,
Marquetta and Waha, during the Pine Ridge reign of terror or the
anguish endured by so many others as they buried their dead. It
mades me wonder what it is that causes people to act in such
barbarous ways. What makes people attack innocents and children?
How can we teach our children to live in harmony, respect, and
tolerance for all cultures when the images they see every day
demonstrate something ugly?
I watched in horror the bombing of the federal building in
Oklahoma City, the terrified faces of innocent people trying to
figure out what in the hell had just happened. I know what it is
like to lose loved ones in a senseless way. I know what it is like
to be victimized and I felt for these strangers as they limped
aaway, carrying little babies in their arms, fighting to rescue
others.
Those allegedly responsible for the assault were ultra-right
wing conservatives. President Clinton spoke well when he said that
citizens of this country have the right to independent political
beliefs. They even have the right to join militias. But they do
NOT have the right to plant bombs or harm others. Neither does any
government.
In other places as well the slaughter continues. Indigenous
people in Mexico, Gypsies in Europe, Palestinians and Israelis,
Serbians and Croatians, all around the globe people are being
abused and we must step back and ask why. Why are we fighting each
other? Why this hate?
Then we must step forward and try to put an end to it. We are
all children of the Creator and we are all related. To persecute
your relatives is a terrible crime in the eyes of the Creator.
On this historic day I wish you to join me in a prayer. This
prayer is offered in the names of all those who died needlessly
and for all those who suffer today at the hand of their repressor
or at the whim of some stupid hatred or prejudice. We pray for
their suffering to end and for the perpetrators to see their
wrongs and correct them.
We ask the Creator to have mercy on us and to give us the
strength and the insight to learn mutual respect to share in
making Mother Earth a safe place for our grandchildren. We pray
for those who have lost loved ones so that their grief will end.
We pray for those who are inmprisoned unjustly that they will soon
be free.
What gives me hope? You give me hope! As my supporters fast
for justice, travel the world relating my story, work endless
hours educating others, and sacrifice their time raising awareness
my faith in human kind remains intact. It is not easy to
sacrifice for a stranger, to go without food, to walk miles and
miles in the hopes of getting some attention, yet you do this for
me. I can never express just what that means except to tell you
that your actions keep my spirit unbroken.
I know that some day I will be able to join you and together
we will work to better the world. I know that soon I will be able
to embrace you, my dear friends, for all that you believe and all
that you continuously accomplish. Please know that despite my
being in prison, my heart is there with each of you. You have my
thanks and my love.
IN THE SPIRIT OF CRAZY HORSE
LEONARD PELTIER