Trial and Motion For a New Trial
The shoot-out occurred on June 26, 1975. Peltier was apprehended
on February 6, 1976, in Canada and was extradited to the United States
on December 18, 1976. The trial began on March 14, 1977, and, on April 18, 1977,
the jury returned verdicts of "guilty."
verdict form containing only one place for entry of a verdict for the
death of each agent was used thus requiring the jury to give only one verdict
covering charges for both murder and for aiding and abetting murder. The single verdict made it impossible to know which theory the jury
convicted on. However, the government's principal argument was
clearly that Leonard Peltier personally shot and killed the agents.
On June 1, 1977, Peltier received two consecutive life sentences, the maximum, for the deaths of the FBI agents.
(The terms of extradition excluded the possibility that Peltier
would receive the death penalty.)
The first appeal of Peltier's conviction for
the deaths of the two agents was filed in December 1977. The
defense contended that Peltier's extradition from Canada, based on
"false affidavits... obtained by the government through coercion
and deceit and known by the government to be false," had been illegal. They also argued there had been a conspiracy between certain witnesses to lie
and a violation
of the Federal Rules of Evidence which provide that, "Evidence of
other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show that he acted in conformity therewith."
Oral arguments were heard in April
1978 and on September 14, 1978, the Judgment of Conviction was
In the absence of proof of a
conspiracy between witnesses, the Circuit Court said, it was
irrelevant whether or not the two witnesses in question had lied.
A prior burglary charge against Peltier in Oregon was dropped in 1977
and, in February 1978, Peltier was acquitted of the "attempted murder"
of a Milwaukee, Wisconsin (WI), police officer. Peltier's attorneys argued
there had been a violation of the Federal Rules of Evidence
in allowing such charges to be heard and likely adversely
influenced the jury. The
appellate court allowed evidence of Peltier's
alleged past crimes as proof of motive for the killings of the
two agents. The Milwaukee and Oregon charges, therefore, unjustly contributed to Peltier's conviction
and subsequent sentence of two consecutive life terms despite
the fact that, in both
cases, the police witnesses involved had been completely discredited.
(See further discussion on the Milwaukee case in the following
"The use of affidavits of Myrtle Poor Bear
in the extradition proceedings was, to say the least, a clear abuse of
the investigative process by the FBI," the court concluded. Judge Ross commented, "If they are willing to do that, they must be
willing to fabricate other evidence." Nevertheless, the court
upheld the lower court's decision to withhold the Poor Bear testimony
from the jury. See:
Appellate Decision, September 14, 1978 (PDF Format).
A Petition for Rehearing
en banc was denied and a
Petition for a Writ of Certiorari (PDF Format) was filed
with the U.S. Supreme Court. On March 10, 1979, the U.S. Supreme Court refused to
review Peltier's case.
Milwaukee Police Officer Ronald Hlavinka (1978)
After the Trail of Broken Treaties,
Leonard Peltier, who had been arrested for trespassing at the Fort
Lawton occupation in Washington State in 1969, returned to Milwaukee,
WI. On the evening of November 22, 1972, Peltier was sitting in the Texas
Restaurant when two off duty Milwaukee policemen picked a fight with
him. As he left the restaurant later they jumped him, beating
him so fiercely that according to later court testimony, one of the
officers broke most of the blood vessels in his hand and couldn't work
for several days afterward. In the struggle, they found a gun on
Leonard Peltier (which did not work, the firing pin being broken), and
they charged him with "attempted murder." One officer received a
citation for "saving" his buddy's life ̶ he foiled the "murder
attempt," it was claimed, by dramatically thrusting his finger between
the hammer and the firing pin as Peltier allegedly pulled the trigger
(Minneapolis Star. November 29, 1972).
After being released on bond Peltier
fled, but he would eventually be returned to face the "attempted
At trial, in 1978, it was determined that the
entire incident had been a fraud, set up by the two policemen. Anne
Guild, girlfriend of policeman Ronald Hlavinka, testified that, prior
to the incident at the restaurant, Hlavinka had shown her a photograph
of Peltier and had told her that "he was going to help the FBI get a big
In February 1978, Peltier, falsely accused
as part of the Federal Bureau of Investigation's attempts to "neutralize"
him and other members of the American Indian Movement, was acquitted of
the "attempted murder" of Milwaukee Police Officer Ronald Hlavinka.
RE: Escape Trial and Motion for a New Trial (1979-1982)
Peltier, fearing an assassination attempt, had escaped from Lompoc Federal
Prison (in California) on July 20, 1979. (See the
affidavit of Robert Standing Deer Wilson regarding the
assassination plot.) Peltier was recaptured on July 26, 1979.
On November 14, 1979, Peltier's escape
trial began. On January 22, 1980, Peltier was convicted
of two of four charges brought against him for his prison escape and was given the
maximum combined sentence of seven years.
On March 20, 1980, Peltier's escape
conviction was appealed to the U.S. Ninth Circuit Court of
Appeals. The case was remanded to the lower court for an error in
denying Peltier adequate cross-examination of a government witness.
On November 23, 1982, on rehearing, the noted error
had been deemed harmless. On this date, the Judgment of Conviction
was affirmed by the Ninth Circuit Court of Appeals. See:
Appellate Decision, November 23, 1982 (PDF Format).
Fargo Trial and Motion for a New Trial (1982-1987)
On April 11, 1982, a Petition for a Writ of Habeas Corpus was filed in U.S. District Court,
Fargo, North Dakota (ND). The defense charged the government with suppression
of exculpatory documents and knowing use of fabricated evidence—the
peculiar ballistics data and the Poor Bear affidavits—to obtain a
conviction, thereby ensuring Leonard Peltier would be denied due
process of law.
On December 30,
1982, Judge Paul Benson, who had presided over Peltier's trial,
refused a Motion (based on an attorney's affidavit attesting to
Benson's derogatory extrajudicial references to Peltier) that he
remove himself from the case. Benson also refused to order the
release to the defense of 6,000 additional FBI documents.
On December 31,
1982, Benson denied the defense Motion for a new trial.
appealed to the Eighth Circuit Court of Appeals.
Oral arguments on a
Motion for a new trial were heard in St. Louis,
Missouri, in October 1983.
On April 4, 1984, the case was remanded to District Court for an evidentiary hearing on
the ballistics evidence, specifically the FBI teletype of October 2,
1975, which, contrary to prior testimony by an FBI expert, stated that
the "Wichita AR-15" allegedly used by Peltier during the shoot-out
could not be linked to the critical .223 casing found near the bodies
of the FBI agents. See:
Appellate Decision, April 4, 1984 (PDF Format).
The evidentiary hearing began
on October 1, 1984, in Bismark, ND, before Judge
Expert witness Special Agent Evan Hodge of the FBI
surprisingly divulged that he had testified before the grand jury on
November 24 and 25, 1975, just prior to Peltier's indictment and that
he had not written (but merely signed) the ballistics affidavit used to
help extradite Peltier to the U.S. from Canada. The government had
illegally withheld the grand jury testimony from the defense team.
the FBI teletypes, Hodge invalidated his earlier testimony—according to the government prosecutors, the most crucial testimony in Peltier's trial. While Hodge had testified that only he and an
assistant had examined the evidence, notes in a third style of
handwriting were present on the lab report. Denying on the stand
a third participant in the evaluation of evidence, therefore
committing perjury, Hodge later claimed he had misspoken. The
court accepted Hodge's explanation. The hearing was suspended to
give the government time to identify the third party and for the
defense to question that individual. Although the
information became immediately available following the hearing,
the FBI waited one month before officially identifying the third
person to handle the ballistics evidence.
On May 22, 1985, Judge Benson denied Peltier's Habeas
District Court Decision, May 22, 1985 (PDF Format).
appealed to the Eighth Circuit Court of Appeals.
On October 15,
1985, oral arguments regarding a Motion for a new trial were
held. At this time, the government changed its prosecutorial
theory to one of "aiding and abetting" and admitted that they "can't
prove who shot those agents."
On September 11,
1986, the court declined to set aside Peltier's conviction.
The court noted that: "The record
as a whole leaves no doubt that the jury accepted the government's
theory that Peltier had personally killed the two agents, after they
were seriously wounded, by shooting them at point blank range with an
AR-15 rifle (identified at trial as the Wichita AR-15)."
The Circuit Court implicitly
acknowledged that the government had used dishonest means to effect
Peltier's conviction. The court concluded that the government
"withheld evidence from the defense favorable to Peltier," which "cast
a strong doubt on the government's case," and that had this other
evidence been brought forth, "there is a possibility that a jury would
have acquitted Leonard Peltier."
The court further found there was more
than one AR-15 in the area at the time of the shoot-out.
The decision to uphold Peltier's
conviction was based on the court's
strict interpretation of the Bagley standard (United States v.
Bagley, 478 U.S. 667, 1985). Judge Gerald Heaney later commented that, under
the circumstances, a jury might well have arrived at a different
decision, but said these circumstances fell short of the judicial
standard required in ordering a new trial, i.e., the court must find
that the jury "probably" rather than "possibly" would have acquitted
Leonard Peltier. It was, he said, "the toughest decision I
ever had to make in twenty-two years on the bench." See: Appellate Decision,
September 11, 1986 (PDF Format).
Unfortunately, the court's decision was
largely based on attorney error. During oral arguments, attorney
William Kunstler was asked by Judge Heaney if it was accurate that
witness Norman Brown had testified to seeing Leonard Peltier by the
agents' cars and in close proximity to the agents' bodies. Kunstler
mistakenly agreed with the judge's memory of the trial record. Later,
while reading the appellate transcript, Peltier himself discovered the
error. Subsequently, Kunstler sent a letter to the court admitting his
error, but all indications are that the letter wasn't seriously
entertained by the judges during their deliberations and, in fact,
that the error was instrumental to their ultimate decision that a jury
"possibly" rather than "probably" may have acquitted Leonard Peltier.
has expressed the view that the FBI was "equally responsible" for the
deaths of the FBI agents. In a 1991 letter to U.S. Senator
Inouye in support of a grant of Executive Clemency to Peltier, Judge
Heaney wrote: "The United States government overreacted at Wounded
Knee. Instead of carefully considering the legitimate grievances of
the Native Americans, the response was essentially a military one
which culminated in the deadly firefight on June 26, 1975... The
United States government must share responsibility with the Native
Americans for the... firefight... the government’s role can properly
be considered a mitigating circumstance."
On October 30,
1986, a Petition for a Rehearing en banc was filed but
was denied in December.
A Petition for
a Writ of Certiorari was filed with the U.S. Supreme Court. On October 5,
1987, the U.S. Supreme Court refused to review the case.
Fargo Trial and Motion For a New Trial (1991-1993)
Leonard Peltier brought a second Habeas Corpus
Petition alleging, in part,
that the government had misled the jury concerning his role in the
shoot-out, and concealed evidence concerning the Wichita AR-15 and of the
presence of more than one AR-15 at the scene. He also alleged
that the government failed to present evidence sufficient to prove its
"direct shooting" theory and could not now change to an "aiding
and abetting" theory in order to sustain the conviction.
October 1991. An evidentiary hearing
related to the defense Motion for a new trial
was held in Bismarck, ND.
December 30, 1991. The
Motion for a new trial was
denied, again by the original judge who presided at the 1977 Fargo trial.
March 23, 1992. A new appeal was filed with the
Circuit Court of Appeals. The defense contended that a concession by
government counsel during oral argument in the prior appeal resulted
in a change in the theory of the government's case &, therefore,
produced a conviction that could not be supported by the evidence
introduced at trial; that the government had engaged in various kinds
of misconduct in connection with the investigation and prosecution of
the case; that the District Court had improperly refused to permit
Peltier to present evidence of self-defense; and that the
government had deliberately created an intimidating atmosphere at
November 9, 1992. During oral argument before the U.S. Court
of Appeal for the Eighth Circuit, the government again and repeatedly
admitted in unequivocal language that it did not prove and disclaimed
the ability to prove that Leonard Peltier was the person who shot the
agents at close range. The government conceded that the
evidence was "sketchy" on the subject of who actually shot the FBI
July 7, 1993. Despite overwhelming exculpatory
evidence, the Eighth Circuit Court again denied Peltier's appeal and reaffirmed
his conviction. See:
Appellate Decision, July 7, 1993 (PDF Format).
and Unusual Punishment (1998-1999)
In 1998, a Petition for a Writ of Habeas Corpus was filed with the
U.S. District Court in the District of Kansas alleging that prison
officials had denied Peltier adequate medical care and subjected him to
cruel and unusual punishment in violation of the Eighth Amendment of the
The District Court dismissed this action,
holding that Leonard Peltier's complaint failed to state a claim for relief.
The decision was appealed to the 10th Circuit Court of Appeals.
On July 15, 1999, a Judgment and Order
was issued by the 10th Circuit
Court of Appeals. The dismissal was affirmed. The court found
that the District Court did not err in dismissing the action and further,
accepting Leonard Peltier's allegations as true, found the complaint against
prison officials was one of medical malpractice. "Medical
malpractice does not become a constitutional violation merely because the
victim is a prisoner." Failure to approve follow up surgery at the
Mayo Clinic was "a matter for medical judgment" and did "not represent
cruel and unusual punishment." See:
Appellate Decision, July 15, 1999 (PDF Format).
Trial and Improperly Imposed Sentence
This appeal before the
Eighth Circuit Court
was for the purpose of making Peltier's two life sentences concurrent rather than consecutive. At the time of Peltier's sentencing, Rule
35(b) permitted "every convicted defendant a second round before the
sentencing judge... giv[ing] the judge an opportunity to reconsider
the sentence in light of any further information about the defendant
or the case which may have been presented to him in the interim."
On May 2, 2002, an
Appellant Brief was
submitted to the Court (PDF Format).
On May 31, 2002, the
Appellee Brief was
submitted to the Eighth Circuit Court (PDF Format).
June 14, 2002 (PDF Format).
Listen to the oral arguments.
Play now (Audiotape, RM Format).
In a decision filed on December 18, 2002, affirming the
District Court's decision, the appellate court stated that the sentences
imposed were themselves legal, but they "were imposed in violation of [Peltier's]
due process rights because they were based on information that was false
due to government misconduct. Under the relevant portion of Rule
35(a), it is true, the court 'may correct a sentence imposed in an illegal
manner within the time provided... for the reduction of sentence' [under
Rule 35(b)]." However, the court ruled that the
District Court did not err in finding it was without authority to rule
on a Rule 35(b) Motion filed more than twenty-two years after the 120-day
filing period expired. See:
Appellate Decision, December 18, 2002 (PDF Format).
RE: Fargo Trial, Lack of Jurisdiction, and
Illegal Sentence (2004-2006)
On December 15, 2004, the Peltier attorneys filed a
Motion to Correct an Illegal Sentence in the U.S. District Court in the
District of North Dakota. The federal jurisdiction conferred by the statutes under
which Peltier was convicted and sentenced depended on the location of
the alleged crime, not against whom the crime was allegedly committed. The statutes required that the acts in question take place "within the
special maritime and territorial jurisdiction of the United States." Because the acts occurred on the Pine Ridge Indian Reservation, which is
neither "within the special maritime [or] territorial jurisdiction of the
United States," Leonard Peltier was convicted and sentenced for crimes over
which the U.S. District Court had no jurisdiction.
here for more information.