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By his appeal to
the United States Court of Appeals for the Tenth Circuit, Leonard
seeks to overturn the United States Parole Commission’s
(“Commission”) refusal to consider Leonard for parole until
December 2008. The normal federal guidelines for parole of prisoners
convicted of similar crimes is 200+months. Though Leonard has already
served over 320 months (already over 11 years beyond the normal
guideline time for release as established by the Commission’s
regulations), the Commission refused even to consider establishing a
parole date until Leonard will have served almost double the normal
guideline time.
The Commission
explained its dramatic and outrageous departure from the established
guidelines based on its sole finding that Leonard was involved in an
“ambush” of the two FBI agents, and executed them at point
blank range after they were incapacitated. The appeal turns on
whether there exists a rational basis for the Commission’s basis
for extending Leonard’s parole so far beyond the normal
guideline. On appeal, Leonard’s legal team strongly contends
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.
Indeed, in 1995
when Leonard appeared for an interim statutory parole hearing before
the same hearing examiner who had presided over Leonard’s
initial parole proceeding, the hearing officer this time
“concluded after a review of the additional exculpatory evidence
that a preponderance finding that Peltier actually executed the
agents cannot be made.” He was moved by the government’s
statements, especially those by Assistant United States 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
these conclusions, the Commission then appointed a second hearing
officer (who was not even present at the statutory interim hearing,
and who disagreed with the first officer’s recommendation. The
Commission then reaffirmed the second officer’s recommendation
and reaffirmed that it would not reconsider Leonard for parole until
December 2008.
One of the most
telling factors is the government’s changing of position as
Leonard’s case has evolved and as further evidence of government
misconduct is unearthed. In 1985, during oral argument before the
Eighth Circuit on Leonard’s appeal from his 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&ldots;.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 more
and more changed its theory from claiming that Leonard was the
shooter to upholding Leonard’s convictions on the theory of
aiding and abetting. It was totally improper for the Commission to
rely simply on the convictions and the published decisions to support
its conclusion that Leonard killed the agents at close range for the
purpose of extending Leonard’s consideration for parole to twice
the normal federal guidelines.
Finally, the
Commission (and the United States District Court for the District of
Kansas which affirmed the Commission) failed adequately to consider
the impact of the critical exculpatory evidence which was improperly
withheld by the government and which completely undermined the facts
relied upon by the Commission to establish that Leonard shot the two
FBI agents at close range. The improperly withheld evidence
established that the government manufactured evidence and gutted the
government’s manufactured case that Leonard executed the two
agents at point blank range. Based on data and reports obtained from
the FBI under FOIA requests, Leonard’s legal team discovered
that the government had withheld exculpatory evidence which
unequivocally ruled out the so-called Wichita AR-15(which was
purportedly Leonard’s) as the murder weapon. More specifically,
the legal team discovered a memorandum dated October 2,1975 by a
ballistics expert which ruled out the Wichita AR-15(the murder gun
purportedly used by Leonard). In addition, the legal team discovered
other data suppressed by the FBI which struck at the heart of the
government’s case and the Commission’s findings which were
upheld by the District Court.
In sum, under
normal federal guidelines, Leonard is long overdue for release on
parole. There is no basis for the Commission to not release Leonard
on parole and certainly no basis for it to refuse to even consider
release until December 2008. This appeal can correct that injustice
and set Leonard free. Now is the time to provide Leonard with the
support to make this come to fruition. Justice is long overdue in
Leonard’s case and now is the time for a panel of judges of the
Tenth Circuit to look at Leonard’s case and at least ameliorate
the unfair and unjust treatment Leonard has received to date.
Ameliorate is all that can be done at this point, as an innocent man
has been punished for nearly 27 years by a corrupt and unyielding
system. Leonard, however, needs your support to ensure that the
courts finally conduct a fair review of his case.
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