RE: Fargo Trial and Motion For a New Trial (1977-1979)

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." 

A 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 affirmed.

• 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 section). 

• "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.

RE:  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 murder" charge.

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 one."

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).

RE:  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.

• Peltier 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 Benson. 

• 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.

• Confronted by 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 Petition. See: District Court Decision, May 22, 1985 (PDF Format).

• Peltier 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. 

• Judge Heaney 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.

RE:  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 Eighth 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 trial.

• 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 agents.

• 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).

RE:  Cruel 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 U.S. Constitution.

• 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).

RE: Fargo Trial and Improperly Imposed Sentence (2002)

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).

• See: Appellant Reply Brief, 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. Click here for more information.