FBI witness intimidation and withheld ballistic evidence; Leonard Peltier should be given clemency

obama_lincoln_washington_week.jpgObama and the Great Emancipator

The FBI sometimes makes mistakes. Just ask James Comey. (I will think about James Comey tomorrow at noon and the thoughts will not be kind.)

In 1975 the FBI engaged in improper conduct during the investigation of the the murder of two FBI agents. There is clear evidence that the FBI engaged in witness intimidation, among other things. After two other men were acquitted on the grounds of self-defense the FBI targeted Leonard Peltier. The initial prosecutor who tried Peltier withheld potentially exculpatory ballistic evidence. Even the prosecutor who took over during the appeals process is now recommending that Peltier be given clemency.

I published the following essay elsewhere and am quoting almost all of it here:

When government officials engage in illegal or improper acts that lead to a conviction, that conviction should be reconsidered. In the case of Leonard Peltier the misconduct of the FBI prevented him from getting a fair trial. He has spent many years in jail even though there were serious problem with the case against him. President Obama has the power to let this 72-year-old man spend his last few years with his family.

Leonard Peltier was convicted of killing two FBI agents but after the trial the FBI admitted that the ballistics evidence did not support the conviction. The FBI coerced witnesses and gave false ‘evidence’ to the courts. The serious misconduct throughout the case by the FBI makes all their investigation and testimony questionable.

Leonard Peltier, an Anishinabe-Lakota Native American is serving two consecutive life sentences. When arrested, he was a leading member of the American Indian Movement, an advocacy group and movement concerned with Native American rights. In 1975, during a confrontation involving AIM members, two FBI agents were shot dead. Leonard was convicted of their murders, but has always maintained his innocence. Amnesty International has studied his case extensively over many years and remains seriously concerned about the fairness of proceedings leading to his trial and conviction. Amnesty believes that political factors may have influenced the way in which the case was prosecuted.


A 1973 protest at Wounded Knee preceded a reign of terror on the Pine Ridge Indian Reservation. More than 60 residents and AIM members were murdered. The FBI did not make much effort to stop the violence or arrest the murderers. After the murder of the two FBI agents the FBI began their aggressive investigation into the deaths of their agents.

FBI agents from across the country immediately were dispatched to Pine Ridge Reservation, where they launched what amounted to an assault upon the Oglala Lakota Nation. They made warrantless searches of homes, offices and residences, coerced testimony, detained people without cause and even restrained an attorney who attempted to prevent a warrantless search. Requests at the time from US Civil Rights Commission Investigator William Muldrow for independent oversight of the FBI were ignored by federal officials.

The injustices that contributed to Peltier’s conviction are not subject to credible dispute. Federal agents made false statements to the press; submitted false affidavits to courts; coerced alleged witness statements; and deliberately withheld critical ballistics reports in order to gain an unfair advantage at trial.

When the ballistics results were discovered after trial, the government’s attorneys conceded – as they had to – that they had no credible evidence regarding who shot the FBI agents, and did not know whose weapon actually killed the agents.

Peltier’s many requests for a new trial were opposed by the government and denied by the courts. He remains in jail today primarily because of an “accomplice” theory of liability which was included in the written charges but not argued to the jury, that he allegedly assisted someone in an unidentified way.


Two other men who were present at the shootout were tried and acquitted. The jury found they had acted in self-defense. Leonard Peltier was tried and convicted of being their accomplice.

William Kuntsler represented Butler and Robideau. Kunstler painted a picture of rising tensions and mutual distrust that characterized relations between AIM and the FBI. Agents were trigger-happy and so were AIM members. The shootings of June 1975 was a tragedy waiting to happen. “The agents are psyched out,…the American Indian Movement is psyched out,” Kunstler told jurors. While suggesting that the Indians had a real fear of an all-out attack by the federal government, Kunstler also sought to discredit the key prosecution testimony of Indians who either saw the defendants near the agents’ car or claimed to overhear the defendants discussing the slayings. Kunstler suggested that their testimony might have been influenced by promises of the government not to pursue charges against them. The defense attorney argued, “There is virtually no evidence on how these agents died.”


The evidence used to show that Peltier as the trigger-man was questionable and the FBI suppressed evidence that might have exonerated him. The only alleged eyewitness recanted her testimony before the trial.

The government’s only direct eyewitness testimony came in the form of two affidavits signed by Myrtle Poor Bear. Poor Bear asserted that Peltier and others had not only planned the killings, but carried them out himself–and that she was with Peltier when he did it. “I saw Leonard Peltier shoot the agents,” Poor Bear’s affidavit stated. Angered at the shooting, Poor Bear (according to her affidavit) screamed at Peltier, hit him, and ran away.

Myrtle Poor Bear was bullied into giving testimony that was used to extradite Peltier from Canada where he had fled to avoid trial.

The government withheld from Peltier’s defense team the fact that Poor Bear had in fact signed three–not just two–affidavits, and that in the earliest of the three affidavits (the one not disclosed), Poor Bear had denied being present on the Reservation when the two agents were killed. Poor Bear, it is safe to say, was simply not a credible witness–and the government should have recognized her mental instability and not used the affidavits. (In 2003, The Tenth Circuit Court of Appeals, while rejecting an appeal of Peltier, made its disgust with government’s handling of the case plain: “Much of the government’s behavior at the Pine Ridge Reservation and its prosecution of Mr. Peltier is to be condemned. The government withheld evidence. It intimidated witnesses. These facts are not disputed.”)


Apparently Myrtle Poor Bear was not Mr. Peltier’s girlfriend and later said that they had never even met each other. She was not the only witness the FBI had bullied, and during the trial she was not allowed to testify about FBI tactics used against potential witnesses.

Although not called as a prosecution witness at trial, the trial judge refused to allow Leonard Peltier’s attorneys to call Myrtle Poor Bear as a defense witness on the grounds that her testimony “could be highly prejudicial to the government.” In 2000, Myrtle Poor Bear issued a public statement to say that her original testimony was a result of months of threats and harassment from FBI agents.


During the trial it became apparent that key witnesses had been intimidated by the authorities.

Some of the most damning prosecution testimony came from Michael Anderson, a young AIM member who witnessed key events surrounding the shooting. . . . . On cross, Anderson testified that he had been threatened in his cell by Agent Gary Adams and admitted that subsequent to his agreeing to testify for the government, charges against him relating to the exploding car in Kansas had been dropped.


The prosecutor, Lynn Crooks, admitted during his summation that Anderson should have been on trial along with Peltier and that the reason he was not on trial was that “we need witnesses.”

Another witness against Peltier was Wish Draper. Draper decided to cooperate after he spent several hours of questioning while tied to a chair without being allowed to have an attorney.

A letter that Amnesty International sent to President Obama in 2015 noted the intimidation of witnesses by the FBI along with other problems with Peltier’s trial. There was a 1975 FBI telex that showed that the rifle the prosecution claimed was Peltier’s actually had a “different firing pin” from the one used to kill the FBI agents. The information that the firing pin did not match was withheld by the prosecution. After the trial the FBI admitted that they do not know who killed the two agents.


The immediate successor to the prosecutor in the initial Peltier trial has asked President Obama to give Leonard Peltier clemency. James Reynolds was active in the case during the appeals process.

James Reynolds, who supervised a key part of the case against Peltier, who claims he was wrongfully convicted of the 1975 murders of two FBI agents, wrote to the president that clemency for the 72-year-old would be “in the best interest of justice in considering the totality of all matters involved”.


In fact, James Reynolds does not know whether or not Peltier was the one who murdered FBI agents Jack Coler and Ronald Williams.

“I don’t know. Who knows?” Reynolds said, when asked if the wrong man might have gone to prison.

“The hardest thing is to try and go back and reconstruct history. He may not have (done the crime),” Reynolds said, adding that Peltier “would not be the first” to suffer a wrongful conviction.

. . . .

“When you stand at the bottom and you look at the naked underbelly of our system, it has got flaws. It’s still the best one we’ve got, but at certain points there has to be a call for clemency and that’s where we are,” the former U.S. attorney said.

. . . .

As for the famously controversial trial for the June 1975 shootings and subsequent appeal from Peltier — which was rejected — Reynolds admitted that “we might have shaved a few corner here and there.”


Since the government shaved a few corners here and there in the prosecution of Leonard Peltier, they should shave a few years off his sentence. President Obama could give him clemency and allow him to spend his last few years with his family.

On December 19, 2016, the Whitehouse website said:

Our nation faces a cycle of poverty, criminality, and incarceration that traps too many Americans and weakens too many communities. Since taking office, President Obama has fought for a smarter and more equitable criminal justice system. He has been committed to using all the tools at his disposal to remedy the unfairness at the heart of the system—including the presidential power to grant clemency.

The President has now commuted the sentences of 1,176 men and women incarcerated under outdated and unduly harsh sentencing laws, including 395 individuals who were serving life sentences. The majority were offenders sentenced for nonviolent drug crimes. To date, the President has granted commutations to more prisoners than the past 11 presidents combined. He has also now granted 148 pardons and is committed to continuing to exercise the clemency power with additional grants of commutations and pardons throughout the remainder of his presidency.

At the same time, President Obama knows that clemency alone cannot fix decades of overly punitive sentencing policies, or make our criminal justice system more fair and more just on the whole. That’s why his Administration has worked to enhance fairness and efficiency at all phases of the criminal justice system.


We should applaud President Obama for his interest in using the power of Presidential pardon to make our country more just and encourage him to commute Leonard Peltier’s sentence before January 20.

Today, Leonard is 71 years old. He suffers from diabetes, and was recently diagnosed with an abdominal aortic aneurysm. Amnesty understands that he is not eligible for consideration for parole again until 2024. Given that all available legal remedies have been exhausted and that that Leonard Peltier has now spent over 40 years in prison and is in poor health, Amnesty believes that the US authorities should order Leonard Peltier’s release from prison on humanitarian grounds and in the interests of justice.


Leonard Peltier has now spent many years behind bars. This 72-year-old man is not a threat to society. President Obama should let him go home.


There is too much injustice in this country, especially in our judicial /prison system. Asking for Leonard Peltier’s freedom is not just for him, but is an effort to help all those who are wrongly imprisoned.

We can make a stand for justice in our legal system by asking for clemency for Leonard Peltier. It is still possible to call the White House comment line at 202-456-1111 .

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