Featured Post

PELTIER: MEMORIAL SERVICE

Dear Supporters: No, this is not about a memorial service for the unrepentant convicted double murderer Leonard Peltier. Each year ...

Monday, March 12, 2012

RETRY PELTIER? CAN'T BE DONE! "THE TRIAL OF LEONARD PELTIER: ANALYSIS OF CONSTITUTIONAL VIOLATIONS"

Dear Supporters:

On the LPDOC’s home page is a statement, “Analysis of Constitutional Violations,” which, if accurate and legitimate, could have some significance in the Peltier debate. But since it is based on a fundamental ignorance of the judicial process, misguided claims and blatant factual errors, it amounts to no more than tortuous Peltier rhetoric.

What they are attempting to do is re-litigate and retry Peltier, which is not possible…that ship has sailed. Analyze all you’d like, but first make it accurate; then set it aside.

They also failed to identify one of only two arguably potential Constitutional violations in the Peltier trial. The Analysis mentions “Brady,” but neglects “Bagley.”

---The Analysis relates in part:

“Prosecutors and federal agents manufactured evidence against him (including the so-called “murder weapon”); hid proof of his innocence; presented false testimony obtained through torturous interrogation techniques; ignored court orders; and lied to the jury. People are commonly set free due to a single constitutional violation, but Peltier—faced with a staggering number of constitutional violations—has yet to receive equal justice.”

Staggering? My goodness. The link to constitutional violations leads to an eight-point Analysis that is so skewed and inaccurate it would take a 75-page Editorial Essay to correct how it misconstrues the reality of both the judicial process and facts of Peltier’s conviction and appeals.

(Author’s note: there are over sixty Editorial Essays on the NPPA website, all of which, including proper sources, references and footnotes, in one manner or another address all the issues raised in this “Analysis.” So, there is no point spending many hours crafting yet another reply. There is a search feature on the NPPA home page that can take a reader to any topic. But for now an appropriate response will be in the form of a conversational addition to the NPPA Blog.)

This Analysis, signed by a “feather,” instead of, as usual, the LPDOC writer taking ownership of his/her work product, assumes the premise that every legal argument in a criminal proceeding is in some manner a violation of the Constitution. It also ignores that it is not just the Constitution (and the Bill of Rights) but the interpretation of those provisions over many decades by the U.S. Supreme Court and applied to the judiciary through voluminous procedural rules of evidence that jurists apply to each legal question raised by the prosecution and defense.

The following is offered to clarify just of few of the Analysis’s errors submitted by “Feather.”

---Extradition: Peltier’s extradition from Canada and the Poor Bear affidavits:

To make it crystal clear, the final word from the Canadian Government was; “All three of the Poor Bear affidavits were before the Minister, as were extensive written and oral submissions made on Mr. Peltier’s behalf.” “I (Canadian Minister of Justice, A. Anne McLellan, October 12, 1999) have concluded that Mr. Peltier was lawfully eradicated to the United States. In my opinion, given the test for committal for extradition referred to above, the circumstantial evidence presented at the extradition hearing, taken alone, constituted sufficient evidence to justify Mr. Peltier’s committal on the two murder charges.” (Footnote #1)

What part of “all three,” “lawfully extradited,” “taken alone,” and “sufficient evidence,” doesn’t Feather quite understand?

---Myrtle Poor Bear, subpoenaed but not allowed to testify:

Really? Then can we also quote Peltier’s own attorney who stated during his opening argument to the jury (trial transcript at 47, by Defense attorney John Lowe) “And finally, we believe that you will find a witness, at least one witness whose mental imbalance is so gross as to render her testimony unbelievable.”

So, Feather wants it both ways to prove nonexistent Constitutional violations: First use the alleged improper use of Myrtle Pool Bear’s affidavits during the extradition proceeding and then, throw Poor Bear under the proverbial bus by calling her mentally imbalanced and not wanting her to even testify. Which is at once, neither politically correct, nor an intelligent evaluation.

---Whose mistakes? Feather said that one of the Constitutional grounds, based on “seven grievous mistakes,” included that; “Angie Long Visitor heard a series of firecrackers. (See had testified she only heard one shot).”

Really, just one shot? According to her trial testimony (transcript at 2566), she was asked “All right. What was it that came to your attention that morning for the first time?” Answer: “Well, we heard something, firecracker or something.”

Heard one shot? No. Heard a “firecracker or something.”

Long Visitor also then very critically added “I looked over and seen them two FBI cars standing there.”

Two FBI cars that no one had to point out to her and that she readily recognized as such, which dispels another Peltier fallacy that the two they were shooting at were “interlopers” or “Goons.” She clearly established that everyone knew the FBI when they saw them.

---Unduly prejudicial testimony allowed: Unrelated collateral criminal acts by Mr. Peltier allowed.

(First, evidence of flight is circumstantial evidence of guilt for a jury to consider.)

---Feather claims “Mr. Peltier’s alleged flight based on circumstantial evidence, from a motor home in Oregon, despite the fact that he was never actually seen there (p.2223-2232).”

So, based on that, Feather wants us to conclude that Peltier was never actually seen there…implying that he wasn’t in the motor home and fled?

Referencing trial transcript 2223-2232, as Feather does to make the point of “alleged flight” is more than disingenuous, it is incredibly sloppy analysis.

At the end of that referenced testimony, Oregon State Trooper Ken Griffiths was asked “All right. When you shot the two shells or shot, did you observe anything to indicate to you from your own knowledge whether or not you had hit the individual? Griffiths’ answered, “No.”

The backdrop is that on November 13, 1975 while fleeing north with others in a motor home (registered to Marlon Brando), and being follow by others in a station wagon, they were all pulled over. As things developed, a shot was fired. One individual, who Trooper Griffiths had already ordered out of the motor home, believed that this individual had fired the shot at him and he returned fire with two shotgun rounds, not knowing whether he hit the fleeing individual.

On November 14th a ’71 Ford pickup and a .30-30 rifle were stolen from a house a few miles to the south and “That day, a relative in the Portland area received a phone call from Peltier, saying that he had been shot and needed help; he was taken to a doctor who had been helpful at the time of Wounded Knee…Peltier rested for three days near Portland while travel arrangements were made; then he headed north, crossing the border into British Columbia…”

That, by the way, is a quote from In the Spirit of Crazy Horse by Peter Matthiessen on pages 230-231. And why is that a valid source of Peltier material? Well, because, at the bottom of the website page of the “Analysis” there’s this notation: “Much of the information on this site is from In the Spirit of Crazy Horse by Peter Matthiessen, the definitive work on the American Indian Movement (AIM) and the Peltier case.” (Fn. 2)

So this is where Peltier made his way into Canada, but there was one other piece of critically relevant physical evidence; under the seat in the motor home was a paper bag containing Jack Coler’s service revolver. On the bag was found a latent fingerprint belonging to none other than, Leonard Peltier.

So Feather, “despite the fact that he was never actually seen there,” it’s not to hard to conclude, then for the jury, and now for us, that Peltier was there.

---Flee: The Analysis emphasizes a convoluted argument that for some reason testimony wasn’t allowed “…tending to show that Mr. Peltier has reason to flee,” “to show reason for flight.”

Then where is the logic? If there were efforts to prove that Peltier had a reason to flee; why didn’t he? Instead, he engaged in assault, murder, desecration and theft…before he decided, to use his own words, “We gotta get out of here.”

---Feather mentions the critical witnesses, but for a straight-forward review of exactly what the jury had to consider regarding those four very crucial witness, please see the Editorial Essay “Critical Witnesses against Peltier.” (Fn. 3)

---Reports of the Red pickup truck: It’s embarrassing that at this late stage the Peltier camp would make any reference to the red pickup. Whether there was either some confusion or conflicting testimony about the description of a red pickup-like vehicle in the area (which was for the jury, not Feather, to decide), does not remove the fact that the red pickup had but one purpose; it was a canard, a defense diversion to create confusion among the jurors, but the historical truth of the matter is that this alleged vehicle is forever inextricably linked to just one thing, the phantom killer, the lie of Mr. X. And without belaboring the mater for the umpteenth time, suffice to say that you should all recall “Incident at Oglala” (available on Peltier’s website), where Bob Robideau provides great detail as he points off into the distance and describes how someone they knew, killed the agents and drove off in the infamous red pickup. And in the very next scene Peltier stating “This story is true.” Remember that, Peltier supporters and Feather? Or would you just like to pretend it never happened or that Dino Butler came out publically, and said it was, in fact, a fabrication, a lie to divert attention from what really happened.
(Fn. 4)

---Most crucial evidence was completely fabricated: The history of this issue is that Peltier received, among other documents, an October 2, 1975 FBI Teletype concerning ballistics evidence. (This related to forensic matching of the Wichita AR-15 {associated only with Peltier} and the .223 shell casing located in the trunk of Agent Coler’s vehicle.) Peltier claimed this was improperly withheld “Brady” material. The trial court (District Court, Judge Benson) disagreed. Peltier appealed to the Eighth Circuit, which remanded the matter back to the District Court and a three-day evidentiary hearing was held in October 1984. The District court ruled against Peltier and he appealed that ruling again to the Eighth Circuit.

After all this additional legal argument and judicial review, the Eighth Circuit concluded: “When all is said and done, however, a few simple but very important facts remain. The casing introduced into evidence had in fact been extracted from the Wichita AR-15. This point was not disputed; although the defense had it own ballistics expert, it offered no contrary evidence.” (Fn. 5)

That was a finding of fact by the appellate court.

There are many more faults in the “Analysis,” but we’ll end here for now.

So exactly what kind of feather is Feather? Obviously it’s intended to be an Eagle feather, a proud and symbolic bird of prey (far from the cowardly Peltier); or more possibly a turkey feather, an animal that is weak, fat, not agile, can’t run very fast, can’t fly and is not very bright; or a vulture, picking on the putrid remains of what’s left of Peltier’s rotting folklore, or more likely the proverbial chicken, afraid to face or understand the facts but runs away from the obvious fact—no matter how they try to retell or spin this case—it cannot retry Peltier or ignore his guilt.

In either case Feather’s Analysis is nothing more than fodder for weak-minded Peltier supporters, too pre-occupied with the myth to explore and understand the facts surrounding his conviction and the unmistakable depth of his remorseless guilt. Add to which, Peltier is playing the Native American race card to a narrow audience, and the gullible are buying into it.

“In the Spirit of Coler and Williams”
Ed woods

(Footnotes)
1- http://www.noparolepeltier.com/canadaletter.html
2- Matthiessen p.230-231
3- http://www.noparolepeltier.com/debate.html#critical)
4- http://www.noparolepeltier.com/lie.html)
5- http://www.noparolepeltier.com/800.html at “The .223 casing” section.