Leonard Peltier Defense Offense Committee - Constitutional Violations
Since 18 Feb 2008
P.O. Box 1033
Article 6. Treaties
Made Under Authority of U.S. Are Supreme Law of the Land
Canada Based on Affidavits Known to the U.S. Government to be False Violated
the Requirements of the Extradition Treaty and Constituted Fraud upon the
Leonard Peltier was
extradited from Canada. The “evidence of criminality” presented to the
Canadian tribunal as required by Article 10 of the Webster-Ashburton Treaty,
8 Stat. 572, consisted of the false affidavits of Myrtle Poor Bear, which
the United States government coerced this frightened woman to sign, and which
they knew to be false. This fraud was in violation of the Canada-U.S.
Extradition Treaty. Aside from his obvious mistake as to the venue of the
incident, one of Canada’s foremost legal scholars, writer Gary Botting, PhD
correctly observed: “Perhaps the greatest failure of justice in Canadian
extradition history surrounds the decision of both the extradition judge and
the Minister of Justice in the case of Leonard Peltier, an American Indian
Movement (AIM) leader accused of the 1975 murder of two FBI special agents
at Wounded Knee, South Dakota” (Botting, Gary. Extradition Between Canada
and the United States, Ardsley, NY: Transnational Publishers, Inc., 2005 ). Botting relates, among other things, the unsuccessful attempt of Mr.
Peltier’s Canadian lawyers to defend him under the Canadian Bill of Rights.
(See also In The Matter of the “Extradition Act”, R.S.C., Chapter E-21 and
In The Matter of Leonard Peltier, No 760176, Supreme Court, BC, Canada.
June 23, 1976.)
The U.S. District
Court Did Not Gain Jurisdiction Over Leonard Peltier.
by the United States government of the Canada-U.S Extradition Treaty, made
under the Authority of the United States pursuant to Article 6, constituted
fraud. The resulting extradition was illegal and tantamount to kidnapping;
hence, it did not provide the trial court with legal jurisdiction of Leonard Peltier. (See U.S. v Rauscher, 119 U.S. 407, 1886.)
Amendment 5. Due
Testimony of Government
Misconduct Leading to Extradition Was Excluded.
The U. S. District
Court excluded testimony and declined to admit exhibits related to Leonard
Peltier’s unlawful extradition from Canada: “Now that the government has
completed its presentation of evidence, the court’s position to evidence to
be offered by the defense is simply that evidence relative to the issues and
the evidence presented by the government will be admitted. I will state,
however, that witnesses who have testified will not be impeached by a
showing of misconduct of the Federal Bureau of Investigation unless that
misconduct relates to the testimony of the individual witnesses who have
testified or unless that misconduct relates to exhibits that have been
received in evidence.” (P. 3458-3459.)
Testimony as to a
Climate of Fear Leading to Peltier’s Flight Excluded.
Testimony as to a
history of egregious conduct by government officials on Pine Ridge
Reservation to eliminate dissent and perpetrators of dissent—commonly known
as COINTELPRO—which targeted members and supporters of AIM, leading to an
investigation by the U.S. Commission on Civil Rights, was either excluded
altogether or greatly curtailed. (p. 3509-3516;3589-3606; 3616-3628; 3837;
4226-4228). William Muldrow, investigator for the U.S. Commission on
Civil Rights, attempted, over pointless objection from the prosecution, to give
testimony tending to show that Mr. Peltier had reason to flee. Although
most of the inane objections were overruled, the Court placed severe limits
on Mr. Muldrow’s testimony, and almost all the exhibits which would have
illustrated the climate of fear on the Reservation after the deaths of the
two agents had been disallowed. On direct examination, Mr. Muldrow was
allowed to testify that after the agents died “it was obvious that there was
a climate of extreme tension, emotions were very high, many persons were
frightened for their own safety and for the safety of their family. They
were concerned as to whether they would be stopped, questioned, in general
there was a high level of fear and tension on the Reservation” (Muldrow, p.
4225- 4226. ) He elaborated on cross examination: “I had been in close
contact with the [Pine Ridge] Reservation for the previous six months
actually, and we had been concerned about the rising climate of fear and
tension on the Reservation; but during my visit following the June 26th
shooting, it was obvious that this climate, this tension and fear, was much
greater than it had ever been before in my observation” (William Muldrow,
U.S. Commission on Civil Rights, p. 4229.; see also testimony as to
government misconduct after the deaths on pp. 841; 104; 2573; 2582-2596;
3821-3826; 3868; 3960-4000;4060-4170;4590-4594;4599-4607; 4801-4805).
Testimony and Evidence Allowed.
objections, all autopsy photographs, including the unnecessarily gory
photographs that had been prohibited in the Butler/Robideau trial, along
with FBI academy graduation photographs of the dead FBI agents were
and collateral criminal acts by Mr. Peltier allowed:
Weapons unrelated to the
shootings found in Wichita, Kansas, in a vehicle explosion (p. 1640; 2200);
alleged flight based on circumstantial evidence, from a motor home in
Oregon, despite the fact that he was never actually seen there (p.
possession of unrelated weapons at his arrest in Canada (p. 274-46);
grenades and unrelated weapons seized in an FBI raid on Rosebud
Reservation, at which Mr. Peltier was not present (p. 2573-2600)
All Defense Motions
for Mistrial on Constitutional Grounds Denied.
Comment by Government
that “defendant is very familiar with the evidence which will be adduced
during the course of this trial. He’s very familiar with the time
sequence. He’s very familiar with the items that were presented earlier”
(p. 2197). Defense counsel asked for jury instruction as to non-evidence
testimony by prosecution. Court denied the request and denied the motion
for a mistrial (p. 2198, 2205).
objections to cumulative prejudicial material overruled; motion for
mistrial overruled (p. 2433-34).
Defense asked Court
to reconsider and cure some evidentiary rulings and, in light of those
errors, grant a mistrial and order a new trial. Court denied motion
Defense counsel Lowe
objected to seven grievous mistakes of Government’s argument and asks that
the Court give “severe cautionary instructions” to the jury and moves for
mistrial in that the Government (Prosecutor Crooks) stated, contrary to witness
testimony or lack of testimony, that:
Mr. Peltier started
Mr. Peltier was an
interloper, not a resident of Pine Ridge and only came in early June.
(Jean Day testified they came in April or May);
Joe Stuntz got out
of his car and fired at the agents;
Angie Long Visitor
heard a series of firecrackers. (She had testified she only heard one
Jury can assume
that Special Agent Williams surrendered;
regarding weapon that contradicted both the laboratory report and the
statement of the witness, Special Agent Lodge;
to stolen rifle discovered in New Mexico that had nothing to do with the
crime scene at Pine Ridge, to which the owner testified he had no
knowledge of who stole it.
The court denied the
motion for a mistrial on these constitutional violations, and refused to give
cautionary instructions to the jury, stating “The Court has already advised
the jury before counsel started that if there’s any misstatement that they
should disregard it and rely on their own recollection” (p. 5001-5004).
Use of highly
prejudicial evidence which went beyond its legitimate purpose: to show
reason for flight. Motion denied; jury to be “appropriately instructed on
the matter, on the matter of what that evidence can be used for” (p.
Myrtle Poor Bear
Subpoenaed but Not Allowed to Testify Before Jury.
While the Defense was
allowed to subpoena witnesses and otherwise compel their attendance in
court, by refusing to allow the testimony of Myrtle Poor Bear to be
presented to the jury, the Court violated the very principal of compulsory
Jimmy Eagle Subpoenaed
by Defense but Not Allowed to Testify Before Jury.
Jimmy Eagle had not
been called by the Government; however, as other witnesses—notably Gary
Adams—began testifying as to Mr. Eagle’s whereabouts on the day of the
shootings, it became necessary for the Defense to subpoena him as their own
witness. After an in camera offer of proof, the Court denied Defense motion
and Mr. Eagle was not allowed to testify before the jury.
Confrontation of Witnesses.
Detailing Inconsistencies and Fabricated Evidence Disallowed or Greatly
Myrtle Poor Bear:
Government Witness. Myrtle Poor Bear, frightened by the FBI into
signing three conflicting affidavits stating that she saw Leonard
Peltier kill the two agents, had been a scheduled Government witness.
However, the Government, realizing that Ms. Poor Bear’s conflicting and
perjured testimony would not have the intended effect on the jury,
refused, over Defense objections, to call Ms. Poor Bear, paving the way
for the Court to rule: “With reference to Myrtle Poor Bear, she not
having testified in the government’s case, I see no relevance in the
matter of her testimony in a prior proceeding or her activity in
connection with the extradition proceeding. The only thing that’s
relevant to the extradition proceeding is that they were had and the
defendant was returned. Whether or not he should have been extradited
is not an issue before this Court” (p. 3459).
Jury Not Allowed to
Hear Testimony. The Court allowed Ms. Poor Bear to give an in camera
testimony and then decided, without having Ms. Poor Bear examined by a
psychiatrist, that she was mentally imbalanced (p. 4659). In a strange
soliloquy, suggesting that perhaps the Court itself were mentally
imbalanced, the Court reasoned: “If the witness, as she testified
yesterday, were to be a believable witness the court would have
seriously considered allowing her testimony to go to the jury on the
grounds that if believed by the jury the facts she testified to were
such that they would shock the conscience of the court and in the
interests of justice should be considered by the jury. However, for the
reasons given on the record yesterday the court concluded the danger of
confusion of the issues, misleading the jury and unfair prejudice
outweighed the possibility that the witness was believable” (p.
Wilford Draper and Norman Brown: Teenagers who were tied up, tortured and
threatened by FBI agents until they signed the coerced and false
affidavits dictated to them by the FBI stating that they saw Mr. Peltier
down by the bodies. All three of the young men repudiated their grand
jury testimonies at trial; yet, the Court refused to allow the Defense to
adequately cross-examine them. Based on their testimonies, each
inconsistent with one another, and based upon the inconsistent testimony
of other government witnesses regarding the shootings, Defense asked to
recall Anderson as their own witness. The Court refused (p. 4320-4330;
see also p. 1125-1127). Defense attorney Taikeff, who had previously
interviewed Norman Brown, attempted to elicit testimony that Government
attorney Sikma congratulated Brown after the grand jury testimony.
Counsel approached the bench and Mr. Sikma said, “That’s a lie. That’s an
absolute lie.” The Court stated, “In view of the denial, the
question will not be allowed (p. 4842-4843). It should be noted here that
Defense offered to prove that Sikma had suborned the perjury of a chief
government witness at the Butler/Robideau trial. The Court disallowed it
and sealed the exhibit and record of the offer.
Reports of the Red
pickup truck: FBI Special Agent Gary Adams heard Special Agent Williams
radio; “It looks like they’re going to get into that pickup.” Adams
testified that he saw a pickup leave the area (p. 90-94). Later, FBI
secretary Ann Johnson testified that Adams radioed at 12:18 that he saw a
red pickup leave the area (p. 1658). Gerald Waring heard “there was a red
and white vehicle.” Robert Ecoffey heard that the night before the
shootings Jimmy Eagle had just left in a red pickup, and the next day that
Williams had chased a red vehicle, van, or pickup. Ann Johnson testified
that Adams radioed at 12:18 that he saw a red pickup leaving Jumping Bull
Hall and that later, at 1:26, she recorded a transmission made by Adams to
Coward that a red pickup with a driver and no passengers stopped at the
log house and left with three people. At the Robideau/Butler trial in
Cedar Rapids, Iowa, Adams stated that he made that call. He changed his
statement at Peltier’s trial in Fargo. Most of the testimony and the
records containing the admissions were ruled inadmissible and was not made
available to the jury (p. 263, 347, 350, 774- 775). The Court skirted
the issue of fabricated testimony by refusing to allow any testimony of
government misconduct: “I will state, however, that witnesses who have
testified will not be impeached by a showing of misconduct of the Federal
Bureau of Investigation unless that misconduct relates to the testimony
of the individual witnesses who have testified or unless that misconduct
relates to the exhibits that have been received in evidence” (p.
Jimmy Eagle: called
by the Defense as a witness. The Court greatly curtailed direct
examination and, over protest from both the Government and the Court,
Defense recalled him. The Court agreed to an in camera offer of proof,
which unequivocally revealed that Mr. Eagle was not on Pine Ridge the day
of the shootings; that the FBI had coerced four former cellmates of his to
give false testimony that Mr. Eagle told them he saw Mr. Peltier kill the
agents; and that he had been threatened by Agent Adams (p. 3961-3979).
The Court recessed before making its final decision to preclude this
evidence from the jury. In a slip of the tongue that revealed its
toadyism, the Court stated: “For the record, the Government adheres to the
ruling that it made this morning in this matter.” And then “I am sorry.
The Clerk indicated to me I said the ‘Government’. The Court adheres to
the ruling” (p. 4028-4058).
302s (Agents’ daily
notes): regardless of an applicable rule of evidence, were not allowed
into evidence if the agent who wrote them testified.
Special Agent Fred Coward testified that
after the shootings he saw Mr. Peltier through a 2x7 power rifle scope at
a distance of one half mile. Defense produced an expert witness who
stated that it was impossible to identify anyone at that distance and the
Defense asked the judge and the jury to look through the rifle scope to
see for themselves that it couldn’t be done. The Court would not allow
the experiment (p. 1797, 3786, 3790). Coward testified that he and
special agents Skelly and Waring discussed the sighting. On the stand,
neither Skelly nor Waring recalled such a conversation. Coward was
recalled by Defense for impeachment purposes. Coward stated that the
dates on his 302s were wrong due to typographical errors. Defense offers
to introduce Coward’s 302s into evidence in order to show that there was
nothing on the reports relating to the alleged sighting were denied (p.
1305-1321, 1351, 2052, 4364).
BIA officer Marvin Stoldt, who was with
Agent Coward at the time of the alleged sighting, testified that he didn’t
recall seeing anyone (p. 3671-3686, 3750); however, Agent Coward testified
that Officer Stoldt told him he spotted Jimmy Eagle in the same group that
Agent Coward spotted Mr. Peltier (p. 1308-1351).
While there was only one pathologist—Dr. Robert Bloemendaal—who
examined the bodies of the two agents, the Government, dissatisfied with
Dr. Bloemendaal’s report, which did not corroborate their theory of the
case, hired Dr. Thomas Noguchi, who not having examined the bodies of
the agents, based his opinion on his theoretical test on animal parts.
Deliberately Withheld By The FBI Proved That The “Most Crucial” Evidence Was
Throughout the trial the
Government stated that the AR-15 rifle found in the wreckage of the car in
which Robideau was riding in Wichita, Kansas, was the weapon belonging to Mr.
Peltier, the only AR-15 on Pine Ridge, the weapon that matched the shell
casing found near the bodies—hence, the murder weapon. This weapon was
referred to throughout the trial as the most crucial evidence against Mr.
Peltier. Later, through FBI documents turned over to the Defense
pursuant to the Freedom of Information Act, it was discovered that there
was more than one AR-15 on Pine Ridge, that the military M-16 (FBI issue) fired the
same shells, and that the shell casing could not have possibly been fired
from the AR-15 discovered in Wichita.
Cunningham, Lodge and Hodge: The affidavit of Special Agent Cortlandt
Cunningham, Chief of the FBI Firearms and Tool Marks Divison, reads:
“Also in the said 1972 Chevrolet Biscayne automobile I found one .223
cartridge case in the trunk which I took into my possession and placed in
an envelope marked ‘Items recovered from trunk, Jack R. Coler
automobile’” (p. 2113-2114). In contradiction to Cunningham’s affidavit,
FBI fingerprint specialist Winthrop Lodge testified that he found the .223
casing in the trunk of Coler’s vehicle and turned it over to Cunningham,
along with everything else he found in Coler’s vehicle. He also testified
that he removed everything from Williams’ vehicle, but did not make notes
of either of these vehicles (p. 3012-3013; 3079-3080; 3112-3138). FBI
Special Agent Evan Hodge, Specialist, Firearms and Tool Marks
Identification Unit presented deliberately fabricated evidence connecting
the .223 casing found in the trunk of Coler’s vehicle with the AR-15 rifle
found in Wichita. The ballistics test supposedly conducted by Hodge was
later proved by FOIA documents to be false (p. 3233-3247, 3388).
Amendment 6. Nature of
Leonard Peltier was not
informed of the aiding and abetting charge that the government alleges led to his conviction. He
was extradited from Canada on two specific charges: Attempted Murder (which
was tried after the Fargo case and resulted in acquittal in Wisconsin) and
First Degree Murder. The Defense repeatedly asked the Court to charge the
jury specifically as to the elements of first degree murder only (aiding and
abetting and manslaughter being separate crimes for which Mr. Peltier had
not been extradited). Despite a compelling and elegant analysis by Defense
attorney Stanley Engelstein of the extradition order and the jury charge
regarding first degree murder necessary to uphold the extradition order (p.
4902-4927), the Court disallowed much of the Defense jury instruction and
allowed the Government to submit instructions that permitted the jury to
convict Mr. Peltier on the aiding and abetting theory suggested by the
Government’s closing argument: “Now, you will note that I didn’t say we
have to prove Leonard Peltier pulled the trigger on either of the deaths
because the law does not require that. All we have to show is that he was
responsible, whether it was by pulling the triggers or by some other method
or means” (p. 4973).
Amendment 6. Impartial
Although the Eighth
Circuit is made up in large part of Native Americans, the jury was made up of
twelve white people: ten women, two men, and two alternates, a man and a
woman. Shortly after the trial began it became known to the court that juror
Shirley Klocke admitted in front of three friends and then in front of Judge
Benson, the attorneys and Mr. Peltier that she did not like American Indians.
Because she said she could be fair, she remained a juror (see p. 269-299).
A climate of fear also
surrounded the court proceedings. The indictment against Jimmy Eagle had
been dropped and Robert Robideau and Darrelle Butler (whose names were
stricken from the heading of the indictment along with Mr. Eagle just
shortly before Mr. Peltier’s trial) had been previously acquitted in Cedar
Rapids, Iowa. With only one member of the American Indian Movement left to
blame, the anti-AIM media was now rampant with anti-Peltier sentiment.
Hence, the jury was sequestered during the entire five and a half weeks of
As if sequestering were
not enough to raise their resentment level, the jury was kept in the dark as
to which twelve persons would actually decide the case. It was not until after the
opening statements that the court nonchalantly informed them: “One thing I
neglected to mention to the jurors, and that is there are 14 of you in the
jury box. When the case has been submitted to you for your deliberation, it
will be submitted only to 12 of you” (p. 53). While decisions to sequester
the jury and not disclose the alternates are not uncommon, they are not
helpful to an already unpopular cause. The trial consisted of three weeks
of prejudicial photos and horror stories followed by two and a half weeks of
Defense testimony pebbled with objections. Most Defense exhibits were
disallowed. Through this prejudicial trial fourteen people, at least one of
whom disliked Native Americans, prevented by law from communicating with
their families, friends and employers for five and a half weeks without any
idea as to their actual part in the deliberation process were expected to
Denying specific requests of
Defense, the Court gave the jury confusing and inadequate instructions on:
the elements of
murder in the first degree;
The Court also gave no
instruction whatsoever on:
aiding and abetting
someone other than persons who have been acquitted;
instruction that Mr. Peltier’s answer “no, but I know who did” to
a Canadian officer’s question “did you kill the agents” in no way
constituted aiding and abetting;
Government case based on perjured testimony and false evidence;
possibilities of innocence before convicting.
Requests to Re-Hear
Certain Testimony Denied.
Several hours into the
deliberation process, over strenuous objection from Defense, the Court
denied two jury requests to read or hear certain testimony: the first,
regarding Anderson’s activities at Wanda Siers’ house during the shootout;
the second for the statements made by Mr. Peltier at the time of his
Canadian arrest. The Court stated: “I might say this: they are asking for a
portion of the transcripts, two different parts of the transcript. Of
course, we have never had daily copy before, but in the past when I have had
requests of this kind, I sent in a note stating that they have to rely on
their own recollection.” Defense asked that the jury be allowed to hear
the testimony re-read. The court refused. “My position will be that unless
counsel on both sides agree, I am not going to read or submit a portion of
the transcript to the jury” (p. 5268-5275).
Amendment 6. Right
to Public Trial.
On the last day of
what the Court admitted was an orderly trial with no security problems, over
rigorous Defense objections, the Court decided to exclude the public,
including Mr. Peltier’s family, during the reporting of the verdict (p.
Amendment 8. Cruel
and Unusual Punishment.
co-defendants, tried on the same charges in another court at another time by
another judge and jury, were acquitted by reason of self defense, Mr. Peltier
was sentenced to two consecutive life sentences. Given the unfair trial, he
expected no better. To the Court’s question “Mr. Peltier, do you desire to
make a statement in your own behalf or present any information to the Court
which the Court might consider in mitigation of punishment in your case,” Mr.
Peltier replied “Yes I do. Judge Benson, there is no doubt in my mind or my
people’s you are going to sentence me to two consecutive life terms.” He
continued with a sensational statement detailing the injustices of his trial
(Volume 26, Sentencing, p. 2-10). Enraged, the Court carried out its intention
and sentenced Leonard Peltier to two consecutive life sentences. In light of
the fact that there was nothing but circumstantial evidence in the trial of
Leonard Peltier, the sentence was unusual, and it was deliberately cruel.
People are commonly set free due to a single constitutional
violation, but Peltier—faced with a staggering number of
yet to receive equal justice. Download
this overview in PDF format.
Much of the
information contained on this site is derived from
In the Spirit of Crazy Horse by Peter Matthiessen, the
work on the American Indian Movement (AIM) and the Peltier case.
successfully defended against lawsuits brought by former Governor and
Congressman William Janklow from South Dakota (convicted of
manslaughter in 2003, jailed, and forced to resign his congressional seat in
disgrace) and FBI Special Agent David Price in three different states,
surviving an eight-year litigation. As acknowledged by the courts, Matthiessen's reputation for not being sensationalistic or scandalous
is well known. He is a highly respected author and his works have
received wide acclaim.
2008-2013 Leonard Peltier Defense Offense Committee.
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