When the Truth Doesn’t Matter
"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."
U.S. Tenth Circuit Court of Appeals
For over 30 years I have sought justice from the United States Courts which have failed to provide me with any relief despite acknowledging numerous acts of Government misconduct. For example, after my trial, my lawyers issued Freedom of Information Act Requests ("FOIA") and discovered that the Government fabricated the ballistics evidence which it used at trial to argue that I shot the agents in cold blood. Once we revealed this egregious misconduct, the Government has had to admit on several occasions in open Court and before the Parole Commission that it could not prove I shot the agents and that it could not prove who shot the agents.
Despite the Government misconduct recognized by the Courts, I remain in prison. When we exposed the Government misconduct, the Government stopped arguing that I "shot the agents," and began arguing that my conviction should be upheld on aiding and abetting grounds, even though the only two people I could have aided and abetted, Robert Robideau and Dino Butler, were acquitted on self-defense grounds. In the Robideau and Butler trials, the Court allowed them to present evidence to show that they where shooting in self defense at unknown assailants who were shooting at houses occupied by women and children. In contrast, my case was moved to another Judge, Judge Benson, who prevented me from introducing evidence of self-defense and evidence of the war-like climate that existed on the Pine Ridge Indian Reservation because of marauding groups of vigilantes hired by a corrupt tribal government, supported by the United States government.
Just as significant, no Court has ever explained how my conviction could be upheld on aiding and abetting grounds since I could not aid and abet myself, and I could not aid and abet my co-defendants since they were acquitted. So, just who did I aid and abet to warrant two consecutive life sentences? The Courts and the Government cannot answer that question. Yet, I remain in prison.
My case demonstrates the illegal means which our Government will utilize to ensure that I, a native American, am punished for the death of two FBI agents, without regard to whether I did it, which I did not, and without regard to the deprivation of my rights. All the Government cared about was that someone was punished for an incident provoked by the FBI, the corrupt tribal government, and its private police, known as the GOON squad. And yet, I remain in prison.
The United States Government keeps me imprisoned to justify the continuing abuses against, not only Native American people, but anyone who seeks to fight criminal abuses such as those committed and/or aided by the FBI on the Pine Ridge Indian Reservation between 1973-1976. This Country has waged, and continues to wage, war not just against native Americans but against any form of domestic political dissent. Secret domestic intelligence programs, such as the well documented Cointelpro program and the Patriot Act, have eroded and destroy the constitutional rights and liberties of all peoples of this Nation. But, most people would rather ignore injustice, then take a stand against injustice and face the wrath of our Government. What I was not allowed to introduce into evidence was the indisputable evidence that United States Government and a corrupt tribal government committed war crimes against the Oglala people during the so-called "Reign of Terror," from 1973-1976. Yet, these crimes have never been uninvestigated, and, if anything, they have been ignored and certain propagandists have revised history to say they never occurred, similar to those who espouse that the genocide of Native American people never occurred in the Americas. The one exception is the murder of Anna Mae Aquash which the United States Government began pursuing earnestly nearly 30 years after her death, in order to smear me to harm my chances at parole through the use of hearsay testimony and unsubstantiated innuendo. I unequivocally deny that I had anything to do with the murder of Anna Mae, and I condemn those who murdered her and those who seek to smear me and make me a patsy for the crime they committed.
The indisputable Government misconduct which led to my wrongful conviction represents a threat to the liberties of each and every one of us. Perhaps this is what ultimately struck the conscience of Judge Heaney (a judge of the United States Court of Appeals for the Eighth Circuit who despite the glaring evidence of Government misconduct, wrote a strained and legally embarrassing decision to deny my first habeas petition), and compelled him to write a letter supporting my request for presidential clemency.
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.
As my lawyers wrote in a recent brief, the United States Court of Appeals for the Eighth Circuit has repeatedly recognized specific instances of FBI misconduct in my case: The Eighth Circuit found that the FBI withheld critical ballistics evidence which raised questions "regarding the truth and accuracy of [FBI agent Evan] Hodge’s testimony." The Eighth Circuit acknowledged that the FBI withheld critical evidence which was "newly discovered evidence indicating [that the government's ballistic's expert] may not have been telling the truth," and that the evidence withheld by the FBI created "inconsistencies casting strong doubts upon the government’s case."
The Eighth Circuit also addressed the government’s coercing of witnesses and extracting perjurious affidavits including the three fabricated affidavits of Myrtle Poor Bear which were used to extradite me from Canada. The FBI knew that Ms. Poor Bear was mentally incompetent. Yet, they had her sign three fabricated affidavits which falsely stated that she was my girlfriend and that she saw me kill Agents Coler and Williams. Poor Bear never knew me, and she was never at the Jumping Bull Compound on June 26, 1975, or any other date that I am aware of. The Eighth Circuit described the Myrtle Poor Bear episode as follows:
In February and March, 1976, Myrtle Poor Bear signed three affidavits which related her eyewitness account of the murders of the two agents on June 26, 1975. Two of these affidavits were considered by Canadian officials in the extradition proceedings. In testimony given outside of the presence of the jury at the trial, Poor Bear disclaimed virtually every allegation contained in the affidavits. She testified that she had been forced to sign the affidavits, which were prepared by FBI agents Price and Wood, under threats of physical harm.
The Eighth Circuit court recognized that "[t]he Poor Bear….testimony was certainly consistent with [my] theory [that the FBI framed me by manufacturing evidence and inducing witnesses to testify in accordance with its theory of the murders.]" Even in the face of this fraud, one of the prosecutors, Lynn Crooks, belligerently stated on television in 1990 that, even if he knew the affidavits were false, he still would not have hesitated to provide them to the Canadian prosecutor.
THE FBI’S ILLEGALL TACTICS IN ITS WAR ON THE AMERICAN INDIAN MOVEMENT AND ME
I was a member of the American Indian Movement who, like many others, was subjected to a number of Counterintelligence (COINTELPRO) type activities by the FBI. "COINTELPRO" is the FBI acronym for a series of covert action programs directed against political domestic groups. This program was investigated and condemned by a Congressional hearing in the 1970s. With this unauthorized program, the FBI engaged in covert actions designed to ‘disrupt’ and ‘neutralize’ target groups and individuals," engaged in political dissent. One of the COINTELPRO type tactics used by the FBI and, in particular against AIM, was the infiltration of the legal defense by paid informants, violating attorney-client privilege. We have recently discovered evidence that the FBI did this in my case.
RECENTLY DISCOVERED EVIDENCE
In the face of Court expressions acknowledging and condemning the Government misconduct, the Courts continue to allow the FBI to engage in wrongful behavior by allowing them to withhold more than 140,000 documents which are located in FBI Field Offices throughout the country. Despite the passage of over 30 years, the Courts have justified the FBI’s behavior by ruling that the Informant Files in my case must be protected because the release of such documents could impact the war on "international terrorism." Such a ludicrous and unfathomable reason can only undermine any remaining confidence we could possibly have that our system is based on justice and fairness.
With respect to AIM, and me in particular, we now know that the FBI used confidential informant sources to compromise attorney/client communications they illegally used to develop strategies for conviction. We recently discovered FOIA documents establishing that the FBI utilized Douglas Durham, a paid FBI confidential source who infiltrated the highest levels of AIM and was exposed on March 7, 1975, in my extradition proceedings from Canada. As one Court recognized, "Mr. Douglass Durham, infiltrated the American Indian Movement under instructions of the FBI, won the confidence of Dennis Banks and other leaders of the movement, occupied a series of high level positions in the organization."
These FOIA documents show that the FBI utilized Durham not only to provide information to William Halprin, the Chief Prosecutor from Canada, against me in connection with the extradition proceedings, but also as an "expert adviser on AIM." Halprin requested Durham’s involvement "to enable him to utilize the source [Durham] to refute statements made by Peltier’s defense." To purportedly avoid legal liability, Durham was told by the FBI not to execute any affidavits or to travel to Canada. "Durham has been instructed to provide information requested by Crown Attorney [and] .. If recontacted by Halprin, he would cooperate fully and would keep Omaha [FBI] advised of developments."
As my attorneys recently wrote, the Courts have indicated that this type of conduct crosses the line:
The informant, Douglass Durham, had worked in various undercover capacities prior to the Wounded Knee incident. His relationship with the FBI began in March 1973 when he supplied the FBI office in Des Moines, Iowa, with copies of photographs he had taken in a one-day visit to Wounded Knee. He later served in various leadership positions within AIM, including national security director and national administrator. He became a close companion of AIM leader Dennis Banks during the period including the Banks-Means trial in St. Paul. Throughout this period of intimate affiliation with AIM and its leaders, he was supplying information to the FBI.
In analyzing this issue, the Eighth Circuit described the troubling conduct by the FBI:
Were we concerned on this appeal with the question of whether the convictions of Dennis Banks and Russell Means, tried in St. Paul, could be upheld, we would have another case. There is evidence in the record and FBI files to indicate that Durham was privy to numerous conversations between Banks and his lawyers, that he was present in St. Paul during the course of the trial, and that he was in constant communication not only with Banks and the other defendants during the trial, but with the FBI. As the record here is devoid of that type of close proximity to the defense of these appellants and as no prejudice has been shown, we refuse to set aside the convictions of the appellants because of the activities of the informants.
The FBI permitted informants to attend both my trial and that of my co-defendants. In an FBI internal memo, the FBI discussed the circumstances under which informant sources could be approved to go to our trials:
"If approved by FBIHQ, sources should be specifically instructed to refrain from being parties to Defense Litigation strategies. Furthermore, they should be instructed that in the event they are unexpectedly placed in the position of being parties to such discussions, they should, where their informant status will not be compromised, leave such discussions immediately."
Durham himself acknowledged that this caution was little more than a wink and a smile. In the Wounded Knee Trials, Douglas Durham was similarly advised by the FBI not to engage in any activity that would violate confidences of the defense, nor to engage in any activities or relate to the FBI any information that had to do with defense tactics, or any legal aspect of the operations of AIM or the defense at that point. In spite of the advice he allegedly received from the FBI, Mr. Durham testified in the United States Senate about the 1974 trial of AIM leader Dennis Banks: "If Dennis and I were sitting in a room and an attorney would walk in and start talking, I couldn’t jump up and say, ‘I can’t be here, the FBI won’t allow it.’"
In a Teletype dated July 7, 1975 from the Special Agent in Charge of the Buffalo Field Office of the FBI to the FBI Director and Mr. Richard Held, Special Agent in Charge, Pine Ridge, South Dakota, The FBI indicated that a confidential source, much like Durham was allegedly advised by the FBI not to engage in any activity that would violate any confidences of my defense. The FBI however refuses to produce the name(s) of their informants and has been given unfettered discretion by the courts to keep this information from my legal team.
Despite our discovering this information, the Courts have let the Government be the arbiter of what documents to produce and what they can withhold. As such, the FBI has unfettered discretion to withhold documents from which it can be determined whether it engaged in misconduct, because it will not acknowledge it. As it is, the FBI deliberately failed to produce any documents from the time period of my trial in the exemplar of documents which it recently produced to the Court to allow it to determine whether the informant documents should be produced to me in an unredacted form. It is clear that it did so to prevent me from finding information they have hid that could affect my due process rights.
Indeed, a document recently produced by the FBI and recently introduced by my lawyers to a Magistrate Judge established that the FBI intentionally took actions to try to avoid producing documents in discovery in my case. But again, this seems to have had no impact on the Court. The United States Federal Courts have recognized overwhelming evidence of FBI misconduct in my case which has already been revealed, yet it has continued to allow the FBI to use exemptions under FOIA to shield its illegal tactics in this case, depriving me of my rights to a fair trail. I urge all of you who believe in justice to join my fight and cry out for the production of all documents related to my case. Why is the FBI still withholding documents? Why won’t they produce all documents to me? To me the answer is obvious. I believe the answer is obvious to you also.
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Lewisburg, PA USA 17837
LEONARD PELTIER Defense Committee Website