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The Trial of Leonard Peltier the Trial of Leonard Peltier

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The Trial of Leonard Peltier the Trial of Leonard Peltier THE TRIAL OF LEONARD PELTIER THE TRIAL OF LEONARD PELTIER by Jim Messerschmidr Foreword by William Kunstler sourh end press TO HELP LEONARD PELTIER FIGHT FOR JUSTICE Send inquiries about how you can help and donations to: Leonard Peltier Defense Committee P.O. Box 583 Lawrence, KS 66044 Send letters of support directly to Leonard: Leonard Peltier#89637-132 United States Penitentiary P.O. Box 1000 Leavenworth. KS 66048-3333 Copyright© 1983 by Jim Messerschmidt Any properly footnoted quotation of up to 500 sequential words may be used without permission, as long as the total number of words quoted does not exceed 2,000. For longer quotations or for a greater number of total words, please write for permission to South End Press. Cover design by Todd Jailer Cover graphic by Robert Warrior Typeset by Trade Composition and South End Press Produced by the South End Press collective Printed in the U.S.A. on acid-free, recycled paper. Library of Congress Number: 82-061152 ISBN: 0-89608-163-x (paper) ISBN: 0-89608-164-8 (cloth) www.southendpress.org South End Press, 7 Brookline Street, #1, Cambridge, MA02139-4146 06 05 04 03 02 7 8 9 10 11 THIS BOOK IS WRITTEN FOR LEONARD WHO REMAINS A POLITICAL PRISONER ON HIS OWN LAND. I DEDICATE THE BOOK TO ERIK AND THE FUTURE OF HIS GENERATION. Leonard Peltier Courtesy of the Leonard Peltier Defense Committee FOREWORD William Kunstler* Having tried the case of one of Leonard Peltier's co-defendants, twice arguedMr. Peltier'sappealsfrom his convictionsof the murders of two FBI agents on the Pine Ridge (SD) Indian Reservation, and presently handling hismotion for anewtrial, Ican hardly beranked as adisinterested witness. Accordingly, I must confess, at the outset,that not only do I believe that he was unjustly tried, convicted and sentenced, but that his travails were the result of FBI misconduct of such magnitude thatanyfair-minded society would havelostnotime in condemning it out of hand. The fact that it took a book like this one to give Mr. Peltier's ordeal a wider audience than his small but devoted band of relatives, friends and supporters is undoubtedly the best evidence that we do not live in such an environment. I do not believe that a foreword should be either a review or rehash of abook. This is particularly true inthis case where very little space is devoted to the trial of Robert Robideau and Darrelle Dean Butler who,along with ayouth namedJimmy Eagle, wereindicted for thesame crimes as was Mr. Peltier. Tried inCedar Rapids, Iowa, before adifferent judge, Butler and Robideau were both acquitted, following which the charges against Eagle were dropped bytheGovernment so that in its own words, "the full prosecutive weight of the Federal Government could be directed against Leonard Peltier." •Kunstler is Vice-President and volunteer staff attorney, Center for Constitutional Rights. ii THE TRIAL OF LEONARD PELTIER The tragic fact of the matter is, had Peltier been tried along with Butler and Robideau, he would surely also have been acquitted. His flight to Canada and the long extradition proceedings which followed it eventually resulted in a separate trial for him in Fargo, ND, hardly a sympathetic locality insofar as militant Native Americans are con cerned, before a judge who apparently shared his neighbors' anti pathies in this area. One of the most telling portions of Dr. Messerschmidt's book is his side-by-side comparison of the diametri cally opposite rulings of the Cedar Rapids and Fargo judges on the same issues. In virtually every instance, the latter resolved contested legal questions against the defendant, in sharp contrast to their disposition in Iowa. For example, where the Cedar Rapids judge had excluded particularly gruesome autopsy photographs of the dead agents, his Fargo counterpart quickly waved them into evidence. It is obvious that the Government, having lost the Robideau- Butler trial, lobbied mightily for a change of localeand presiding judge for that of Mr. Peltier. With three of the four defendants originally accused of the crimes out of the picture, it was determined to obtain at least oneconviction. In short, it wasgiven a second chance to win and it did everything in its power to alter those circumstances which, in its opinion, had materially contributed to the Cedar Rapids acquittals. That it succeeded is graphic evidence of the insidious nature of governmental judge- and venue-shopping in political cases. Witness the selection of Harrisburg, PA, for the 1972 trial of Phillip Berrigan and his six Catholic anti-war activists accusedof a conspiracy to kidnap Henry Kissinger, and Pensacola, FL, the original site of the trial of eight Vietnam Veterans Against the War (VVAW) for disruption of the 1972Republican National Convention in Miami,to name but two better known examples. Recently acquiredFBIfiles, obtained byPeltier's counselthrough the Freedom of Information Act (FOIA), now clearly reveal that the Government, bitterly dissatisfiedwith the conductof the CedarRapids judge in the Robideau-Butler trial,somehow engineered a change of venue to Fargo.Once the transfer hadtaken place, its minions lost no time in furnishing derogatory material about the defendant and the American Indian Movement (AIM) to the new judge. In addition, the latter and the FBI began to work closely together on a number of matters, including "a technical security survey" of the judge's cham bers, inspired by official innuendoes that defense counsel might be eavesdropping in that area. Moreover, the FBI files indicated a dear collaboration between the Foreword iii Government and the South Dakota federal judge who had supervised the grand jury investigation of the case. Among other things, this judge stated that he would be willing to accede to the prosecutor's request to move the grand jury from more liberal Sioux Falls to Rapid City, providing that he was furnished with "a 'game plan' that would insure there would not be any problems with people either refusing to answer subpoenas or refusing to testify once they were before the FGJ [Federal Grand Jury]." Additionally, the judge was meeting regularly with governmental representatives and, on at least one occasion, invited an FBI agent "to see him [about the case] when he was in Rapid City." There is now pending before the Fargo judge a motion for a new trial based on other FOIA-obtained documents which conclusively prove that crucial evidence which would have destroyed or seriously compromised the case against Peltier was not disclosed to the defense by the Government as required by law. For example, a high velocity shell casing allegedly found in the trunk of one of the fatally wounded agents' cars, which was characterized by the prosecutor as "the most important piece of evidence in this case," was connected,at trial by an FBI firearms expert to an automatic weapon attributed to Peltier. However, the defense was never informed that the comparison tests conducted on the casing and the weapon in question had proved negative. This non-disclosure,as well as at least five others of comparable significance, formed the basisof the newtrial motion.Shortlyafter the filing of this motion, another one was made to disqualify the Fargo judge on the ground that he had collaborated closely with the prosecution before and during Peltier's trial. At this writing, no action on either application has been taken, but I am certain that, granted an evidentiary hearing, the defense will be able to demonstrate that Peltier's conviction wasobtained bygross and pervasive governmental misconduct. It is not expected that there will be a definitive conclusion to the Peltier case before this compassionate and well-informed study, not only of this matter but of the FBI vendetta against Native American activists, is published. Hopefully, it will open the eyes of many non- Indians as to the extent of official criminality against AIM and its members, a state of affairs which led one federal judge, in one of the Wounded Knee leadership cases, to dismiss a prosecution on the ground that "the waters of justice have been polluted." At the very least, it should help to mobilize support for the release of a major victim of the white man's politically motivatedcriminal justicesystem. PREFACE The "Trial" of Leonard Peltier Ward Churchill "War," wrote von Clauswitz in his famous treastise, On War, "is policy continued by other means." It seems appropriate, when considering the 20th century relationship of the United States and American Indian peoples, to observe that the Clauswitz dictum of military purpose may rightly be inverted upon occasion: Policy has become the continuation of war "by other means." Article I of the United States Constitution posits the principle thatthe federal government alone possesses treaty making powers; nostateor local government is so entitled. The same article further states that federal level treaty making occurs between the United States andother sovereign nations. Hence, the terms and conditions of the various treaties into whichthe U.S. has chosen toenteroverthe years assume a special juridicial status within American legal life. They assume a theoretical force and validity on a par with that of the constitution itself, according to ArticleVI. For subordinate legislation or governmental action to challenge the terms and conditions of a standing treaty is clearly illegal on the basis of constitutionality alone. This, however, is a consideration bearing solely upon the internal legal circumstances of the United States. A treaty, first and foremost, is a document representing an international agreement, an arrangement between sovereigns, and is vi THE TRIAL OF LEONARD PELTIER thus subject to international understandings of law and extralegal activities on the part of governments. This is an arena within which the internal actions and legislation of the U.S.
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