By Peter Matthiessen
November 19, 2009
via infoshop News
On July 27, 2009, I drove west from New York to the old riverside town of
Lewisburg in central Pennsylvania, the site of the federal penitentiary
where early the next morning I would make an appeal to the parole board on
behalf of the American Indian Movement (AIM) activist Leonard Peltier in
his first parole hearing in fifteen years. On this soft summer evening, a
quiet gathering of Peltier supporters from all over the country had
convened in a small park near the Susquehanna River. Despite his long
history of defeats in court, these Indians and whites sharing a makeshift
picnic at wood tables under the trees were optimistic about a favorable
outcome. Surely a new era of justice for minorities and poor people had
begun with the Obama administration, and anyway, wasn't Leonard's freedom
all but assured by the Parole Act of 2005, which mandated release for
inmates who had spent thirty or more years in prison?
Leonard Peltier, an Ojibwa-Lakota from Turtle Mountain, North Dakota, was
one of the three young Indians who were among the participants in a
shoot-out with the FBI at Oglala on South Dakota's Pine Ridge Reservation
on a hot dusty day in June 1975. They were later charged with the deaths
of FBI agents Jack Coler and Ron Williams. Ostensibly searching for a
suspect in a recent robbery case, the agents had been warned by tribal
police not to enter the property where the AIM Indians had their camp.
Their intrusion apparently provoked a warning that led to an exchange of
gunfire. Understandably outraged by the deaths of Coler and Williams and
in particular by the fact that an unknown "shooter" had finished off both
wounded men at point-blank range, their fellow agents would also suffer
intense frustration and embarrassment when a dozen or more of the Indians
involved, using a brushy culvert under a side road, escaped a tight cordon
of hundreds of agents, Indian and state police, national guardsmen, and
vigilantes who had the area surrounded.
More galling still, Bob Robideau and Dino Butler, two of the three AIM
suspects in the killings arrested during the FBI's huge "ResMurs"
(Reservation Murders) investigation, were acquitted a year later in Cedar
Rapids, Iowa, on a plea of self-defense, as the third and last suspect,
Leonard Peltier, would certainly have been as well, had he not fled to
Canada. He was arrested there in February 1976, extradited back to the US,
and tried separately. Though originally indicted with the others on
identical evidence, he was barred by a hostile new judge, Paul Benson,
from presenting the same argument based on self-defense that had led to
Robideau and Butler's acquittal. Furiously prosecuted as the lone killer
and convicted for both deaths on disputed evidence, Peltier was sentenced
in February 1977 in Fargo, North Dakota, to two consecutive life terms in
federal prison.
The following year, when Peltier's conviction was appealed, 8th Circuit
Court of Appeals Judge Donald Ross denounced the coercion of witnesses and
manipulation of evidence in his case as "a clear abuse of the
investigative process by the FBI"; the US Attorney's Office, too, would be
sharply criticized for withholding exculpatory evidence. In October 1984,
in an evidentiary hearing in Bismarck, North Dakota, ordered by the
appellate court to review the possibility of a new trial, the prosecutor,
US Attorney Lynn Crooks, had to concede that the FBI's own laboratory had
failed to verify the claimed ballistics link between Peltier and the
murder weapon that was used to nail down his conviction—a shell casing of
disputed provenance that Crooks had called "perhaps the most important
piece of evidence in this case." Even so, Judge Benson refused to
reconsider the conviction. The following year when the decision was
appealed again, Crooks finally admitted that the identity of "the shooter"
had never been proven and was in fact unknown to the prosecution even when
it was twisting the evidence to ensure Peltier's conviction and make
certain that its third and last suspect—by its own description, "the only
one we got"—was imprisoned for life. Yet the appellate court, while noting
that so much tainted evidence had deprived the defendant of his
constitutional right to due process of law, found "no compelling legal
justification" for ordering a new trial.
In a TV interview after his retirement in 1989, Judge Gerald Heaney, who
had signed that astonishing decision, called it "the most difficult I had
to make in twenty-two years on the bench." The following year, in the
National Law Journal, this troubled jurist held the FBI "equally
responsible" for the deaths of its two agents; in a letter to Senator
Daniel Inouye of Hawaii, he urged commutation of Peltier's sentence.
Questioned on the same 1989 TV show about the perjured affidavits
extracted by FBI agents from a frightened alcoholic, US Attorney Crooks
declared: "I don't really know and I don't really care if they were false.
I don't agree that we did anything wrong, but I can tell you, it don't
bother my conscience one whit if we did." Properly outraged by this
arrogant refusal to repudiate US government use of fabricated evidence,
Senator Inouye, as a former US attorney, called Crooks "a disgrace to the
profession."
I first interviewed Leonard Peltier in Marion Penitentiary in 1981, and
that same year, with his original codefendant Bob Robideau, I inspected
the Jumping Bull Ranch at Oglala where the shoot-out had taken place.
Later, after reading many if not most of the pertinent documents,
including the FBI field reports and the transcripts of both trials, I
returned to Oglala to interview local people and study the scene again.
Like the FBI, I would hear all sorts of rumors about the many young
Indians involved without learning which one had fired the fatal shots;
however there seemed to me no doubt whatever that Leonard Peltier had been
railroaded into prison. Unfortunately my long book making that case[*] was
quickly suppressed by libel suits brought by South Dakota's attorney
general, William Janklow, and an FBI agent named David Price. Eight years
would pass before both suits were summarily dismissed and the book was
back in circulation. Meanwhile Peltier's long fight for a fair trial had
won his endorsement as a political prisoner by Amnesty International, and
his thousands of supporters throughout the world included the Dalai Lama,
Nelson Mandela, Desmond Tutu, and the great majority of his own people in
the more than 250 Indian nations that had formally demanded his release.
In Peltier's first parole hearing in 1996, the examiner filed an internal
recommendation in Peltier's favor. (The US Parole Commission, like the US
Attorney's Office and the FBI, is under the aegis of the Justice
Department: its examiner informs himself about the case, questions both
sides, and appraises the new evidence, if any.) Yet in actions so belated
and irregular as to raise suspicion of undue influence, the commission
replaced that first examiner with one more to its liking and denied
parole.
By then, the few bold lawmakers who had called for investigations had
retreated or retired, and Peltier's best hope was executive clemency. To
that end, I wangled my way into the Oval Office and pressed my book about
the case into President Clinton's hands. In January 2001, during Clinton's
last week in office, as FBI lobbyists—the Association of Retired FBI
Agents and No Parole for Peltier—marched in front of the White House, I
joined attorney Bruce Ellison and filmmaker Jon Kilik in a long meeting
with the presidential and White House counsels in which we argued that
granting clemency to an American Indian who could offer nothing in return
was a bold symbolic step that could only enhance the President's
last-minute efforts to prop up his legacy.
The lawyers seemed impressed and hopes were high, but when the clemency
list appeared on the Saturday morning of Inauguration Day, Peltier's name
was missing. The phone call I dreaded was put through from Leavenworth
Prison in early afternoon. "They didn't give it to me," mumbled a stunned
voice I scarcely recognized—the first time in twenty years of visits,
letters, and telephone conversations that Leonard Peltier's strong spirit
sounded broken. With all court appeals exhausted and no hope of mercy from
the incoming Republican administration, this aging prisoner was condemned
to wait for his next parole hearing in 2009.
In the park in Lewisburg, people agreed that had the shoot-out victims not
been "FBIs," Leonard might never have been convicted; at the very least,
he would have been paroled many years before. Someone in the park recalled
the fear and disruption on the reservations caused by the FBI's huge
ResMurs investigation (which was widely perceived as the latest chapter in
the long history of oppression and revenge against "the redskins who
killed Custer" that had led up to the shoot-out). The killing that day in
June 1975 of a young member of the AIM by a marksman's bullet in the
forehead had gone all but unmentioned, someone said, let alone
investigated by "the Injustice Department," doubtless because "Injuns
don't count." How about Bob Robideau's statement to an FBI man that he had
been "the shooter"? Would the Parole Commission take that into account?
And was it suspicious that Robideau had been found dead last February in
Barcelona? (The official autopsy
concluded that he had struck his head in a fall while suffering a
seizure.) With Peltier's attorney Eric Seitz and the two other parole
advocates —Dr. Thom White Wolf Fassett, a Seneca elder and United
Methodist adviser to Congress on Indian affairs, and an Ojibwa woman named
Cindy Maleterre representing Peltier's Turtle Mountain Reservation—I went
early the next morning to the prison, passing supporters waving "Free
Peltier" signs at the entrance road.
In the hearing room the first to speak were the two sons of the late agent
Jack Coler. After testifying to their family's great loss, they suggested
that if this man facing them today were to take responsibility and express
remorse for those brutal murders he so stubbornly denies having committed,
the Coler family might not protest his parole. But the three FBI spokesmen
and the assistant US attorney who spoke next were content to repeat the
same vilifications and distortions of the facts that won a conviction back
in 1977. Locked long ago into their ResMurs myth, they insisted that
Peltier was still a danger to the public and cited those provisions in the
Parole Act specifying that parole may be denied if the subject's release
might "depreciate the seriousness of the offense" or "promote disrespect
for the law."
In response to the charge that Peltier has evaded his responsibility for
those murders, Eric Seitz countered that the FBI and the US Attorney's
Office have evaded responsibility for their own illegal tactics in his
prosecution. Otherwise Seitz made no attempt to retry a long historic case
in a few minutes, emphasizing instead the prisoner's exemplary behavior
record, serious health problems, and other strong qualifications for
parole under the commission's geriatric and medical criteria. He reminded
Examiner Scott Kubic that in a few weeks, on September 12, when Peltier
would turn sixty-five, he would also become eligible for home detention
under the new Second Chance program for elderly inmates designed to ease
overcrowding in the US prisons.
Thom White Wolf testified that Peltier's incarceration for nearly
thirty-three years has been viewed both nationally and internationally as
a gross injustice and a major embarrassment to our country, with a
negative effect on the world's view of how the US government treats its
native population. When my turn came, I spoke to the points made in this
article, adding how much this inmate had matured over the three decades of
our acquaintance, not only as an articulate spokesman for his people but
as an artist, self-taught in the prisons, whose work is admired through-
out the US. And Cindy Maleterre assured the examiner that the prisoner's
Ojibwa-Dakota people at Turtle Mountain—including grandchildren he has
never seen—had already taken care of the parole requirements of social
support, adequate housing, and steady employment (as an arts-and-crafts
teacher and alcoholism counselor on the reservation), and were planning to
welcome him home with a great feast.
That afternoon we left the prison with the feeling that Examiner Kubic had
listened carefully and would recommend parole—a guarded optimism we
conveyed to the flag-waving supporters awaiting our report on the public
road. But no one forgot how the examiner's finding in Peltier's favor
fifteen years before had been aborted; in the next weeks, as so often in
the past, the prisoner would have to suffer the suspense of desperate
hope.
On Friday, August 20, federal inmate #89637-132 received terse notice that
his petition for parole had been denied: not until his "15-year
Reconsideration Hearing in July 2024," he was informed, would he become
eligible to be turned down again. In the unlikely event that he lives long
enough to attend that hearing, Inmate Peltier will be eighty years old. In
his angry response, Attorney Seitz accused the commission of "adopting the
position of the FBI that anyone who may be implicated in the killings of
its agents should never be paroled and should be left to die in prison." I
entirely agree with Seitz and share his anger. For the prisoner and his
supporters, the Lewisburg hearing had been hollow, with a predetermined
outcome: The United States v. Leonard Peltierhad always been a matter less
of justice than of retribution.
Americans—those in public office especially—should inform themselves about
this painful case and demand an unbiased investigation that might start
with one simple question: If, in the thirty-three years since his trial,
reputable evidence has ever emerged that Leonard Peltier was the lone
killer and deserves to be in prison for life, why hasn't the Justice
Department produced it?
Without public protest, Peltier will not be granted a fair hearing since
his prosecutors know that in the absence of honest evidence, "the only one
we got" would be set free. Instead, this man's life leaks away behind grim
concrete walls for the unworthy purpose of saving face for the FBI and a
US Attorney's Office that together botched the famous ResMurs case and
mean to see somebody pay. And who better for this fate than a "radical"
AIM Indian who dared stand up to "legally constituted authority" in
defense of his humiliated people, as he was doing with such tragic
consequences on that long-ago June day?
In reviewing this case with an open mind, as surely he must in fulfilling
his oath of office, Attorney General Eric Holder (the assistant attorney
general in 2001) might reflect on his own role in the clemency bestowed by
Clinton on Marc Rich, the notorious "fugitive felon." He might consider,
too, Rich's consequent evasion of even a single day in prison in the harsh
light of the eleven thousand days already served by a penniless American
Indian who remains innocent before the law, having never been proven
guilty.
Notes
[*]In the Spirit of Crazy Horse (Viking, 1983).
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