Leonard Peltier Case | Summary of Appeal | 10th Circuit Court of Appeals - November 5, 2003 | Leonard Peltier

SUMMARY OF APPEAL

10th Circuit Court of Appeals

November 5, 2003

Leonard Peltier is a federal prisoner serving two consecutive life sentences at the United States Penitentiary, Leavenworth, Kansas, in connection with the 1975 deaths of two agents of the Federal Bureau of Investigation (FBI) on the Pine Ridge Indian Reservation in South Dakota.

Despite an almost perfect prison record since 1979, Peltier has now been incarcerated for over 320 months (over 11 years beyond the normal time as established by the U.S. Parole Commission's own regulations) in connection with these offenses. This is significantly longer than the time at which a prisoner with a good record would normally have been granted parole under the regulations existing both at the time of the offense and the current regulation issued by the Commission. Nevertheless, the Commission has repeatedly stated that it will not even consider Mr. Peltier's release on parole until December 2008, at which time Leonard will have served almost double the normal time.

After Peltier's trial, based on documents obtained from the FBI under Freedom of Information Act requests, Leonard's legal team discovered that the government had withheld exculpatory evidence, including critical ballistics data. Specifically, the legal team discovered a memorandum by a ballistics expert dated October 2, 1975, that unequivocally ruled out the "Wichita" AR-15 (which was purportedly used by Leonard Peltier on June 26, 1975) as the murder weapon. The improperly withheld evidence suppressed by the FBI struck at the heart of the government's case and the later Parole Commission findings which were upheld by the U.S. District Court in Kansas.

One of the most telling factors in Leonard's case is the government's changing position as the case has evolved and as further evidence of government misconduct has been unearthed.

In 1985, during oral arguments before the U.S. Eighth Circuit Court of Appeals on Leonard's first habeas petition, the government argued that it did not need to prove that Leonard executed the agents at close range and admitted that "... we can't prove who shot those agents." In 1990, Leonard brought a second habeas petition and the government again stressed that Leonard's conviction did not rest on his participating in the close range execution of the agents: "We knew who participated, we knew who was murdered, but we did not know quote-unquote who shot the agents. The facts available did not give us direct evidence as to who did the coup-de-grace. They simply didn't ... We argued inferences and we certainly argued that strongly. But that's not the same thing as saying that we had direct evidence by any one witness that Peltier was the one that squeezed off the final rounds."

Thus, as the evidence linking Leonard to shooting the agents began to evaporate, and as it became more and more clear that the evidence relied upon by the government was manufactured after the fact, the government changed its approach from claiming that Leonard had been the shooter to upholding Leonard's convictions on the theory of aiding and abetting.

In 1995, Leonard appeared for a statutory interim parole hearing before the same hearing examiner who had presided over his initial parole proceeding in 1993. The hearing officer "... concluded after a review of the additional exculpatory evidence that a preponderance finding that Peltier actually executed the agents cannot be made." The examiner was moved by the government's statements, especially those by Assistant U.S. Attorney Lynn Crooks who had acknowledged that "... the government does not know, insofar as having the evidence to sustain a conviction in court, that Leonard Peltier fired the fatal bullets into the agents." The hearing examiner thus conceded that the 15-year reconsideration decision in 1993 was based on the mistaken belief that Peltier's convictions had "... included a specific or directed finding by the jury that Peltier had fired the fatal shots into the agents causing their deaths."

Dissatisfied with this conclusion, the U.S. Parole Commission appointed a second hearing officer who had not been present at the statutory interim hearing and not surprisingly disagreed with the first examiner's recommendation. The Commission then accepted the second officer's recommendation. From then to now, the Commission has steadfastly refused to consider Leonard for parole until December 2008.

The Commission has failed to adequately consider the impact of the critical exculpatory evidence that was improperly withheld by the government at trial & which completely undermines the facts relied upon by the Commission to establish that Leonard shot the two FBI agents at close range. We can only conclude that Mr. Peltier's continued incarceration -- and the failure of the United States to release him on parole -- is based on animus. Continued imprisonment is not supported by the reasons given by the Commission, i.e., its finding that Leonard had been involved in an "ambush" of the two FBI agents on June 26, 1975, and had executed them at point blank range after they had been incapacitated.

On appeal, Leonard's legal team argued that the Commission erred because its stated reason: (1) is not supported by Leonard's convictions or the Eighth Circuit decisions addressing post-conviction petitions; (2) is not supported by the evidence before the Commission; and (3) is undermined by the material exculpatory evidence the government improperly withheld at Leonard's trial. The legal team argued that the U.S. Parole Commission's denial of parole constitutes a violation of law, as well as being inconsistent with its own congressionally mandated guidelines. In short, the denial of parole in this case is an abuse of power and discretion, and violates Leonard Peltier's constitutional rights. The Peltier attorneys will request that the appellate court issue an order that Peltier be given fair consideration for parole directly, under appropriate factors, which consideration should lead to his immediate parole.

See www.leonardpeltier.org