Continuing the review and critique of Peltier’s Letter to the President and clemency application, it’s unthinkable that his attorneys, Martin Garbus, Cynthia Dunne and Carl Nadler believe that making these documents public would be of any benefit to Peltier.
It’s evident they have blindly bought into the myth and folklore and believe that the USDOJ Pardon Attorney, Attorney General, and the President are unaware of the facts or unable to easily see through the subterfuge of providing half-truths. Garbus, Et. Al., do this because telling the whole story is devastating to Peltier. But the record will be set straight here. Perhaps Peltier should ask for a refund and Garbus, Dunne and Nadler could form a new law firm representing political prisoners who drive ambulances.[i]
The “…notoriously convoluted procedural history…” of the Peltier matter will end in failure on January 20, 2017.[ii]
They begin the Application with four bullet points that are readily dispelled:
1) “The FBI used improper tactics securing Peltier’s extradition from Canada and in otherwise investigating and trying the Peltier case.”(Quoting from Judge Gerald Heaney’s 1991 letter to Senator Inouye. See the previous NPPA Blog regarding this letter.)
In complete deference to the late Judge Heaney (please see the Judge Heaney sections of this Editorial Essay [iii]), and let it be clear that he was passionate in his beliefs and support of Native Americans, however, he ruled against Peltier based on the facts and the law in every instance.
But the Honorable Judge was ultimately wrong on the extradition.
This is some of the dirty laundry Peltier and his attorneys want to keep out of sight, or hope that everyone is tone deaf to all the Peltier history, like the two-decades long and only alibi that turned into a horrendous lie, Mr. X; the armed escape from Lompoc, and of course, the four page October 12, 1999 letter from the Canadian Minister of Justice A. Anne McLellen to the U.S. Attorney General Janet Reno, where the entire extradition process was reviewed and concluded with:
“As I indicated above, I have concluded that Mr. Peltier was lawfully extradited 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. My conclusions in this regard are consistent with the arguments made by Department of Justice counsel before both the Federal Court of Appeal and the Supreme Court of Canada.”[iv] (Emphasis added)
In other words, if this concept isn’t lost on the legal scholars, even without Myrtle Poor Bear, Peltier was subject to extradition.
2) “[We] find that the prosecution withheld evidence from the defense favorable to Peltier, and that had this evidence been available to the defendant it would have allowed him to cross-examine certain government witnesses more effectively…”
Nice try, but Judge Heaney’s decision says a lot more about the evidence and Peltier than that single quote, and everyone is encouraged to read it in its entirety.
This decision related to; an October 2, 1975 FBI Laboratory teletype that was not turned over to the defense, another appeal, a remand back to the District Court for a three-day evidentiary “ballistics” hearing, and the precise meaning of the teletype. Peltier was denied and appealed again to the Eighth Circuit Court of Appeals.
Central to the ballistics hearing and appeal was Peltier’s possession of the only AR-15 among the AIM members that June day and the extractor marks matching from that weapon to a shell casing found in the trunk of Agent Coler’s Bureau vehicle.
Reviewing Peltier’s conviction, Judge Heaney stated “We then held that the evidence was sufficient for the jury to find Peltier responsible for the murders.” (Emphasis added)
Judge Heaney reviewed the evidentiary hearing and trial record and concluded “Yet we are bound by the Bagley test requiring that we be convinced, from a review of the entire record, that had the data and records withheld been made available, the jury probably would have reached a different result. We have not been so convinced.” (Emphasis added.)
Before reaching this conclusion Judge Heaney made perhaps one of the most critical and damning conclusions to Peltier’s credibility, claims of not receiving a fair trial, and alleged innocence:
“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 (Peltier’s) AR-15. This point was not disputed; although the defense had its own ballistics expert, it offered no contrary evidence.”(Emphasis added)[v]
3) “Much of the government’s behavior at the Pine Ridge Reservation and in its prosecution of Mr. Peltier is to be condemned. The government withheld evidence. It intimidated witnesses. These facts are not disputed.”
Would it come as a surprise to Messrs. Garbus that this comment had nothing to do with Peltier’s conviction?
This quote comes from the 10th Circuit Court of Appeals in 2003 when Peltier filed a motion for a Writ of Habeas Corpus seeking immediate release on parole and challenged the record before the U.S. Parole Commission. In other words, it had nothing to do with the underlying conviction for murder, although, the 10th Circuit was entitled to its unsolicited and gratuitous opinion.
But, and of course omitted by Marty, just prior to this rebuke the same appellate court said:
"Previous federal court decisions provided the (Parole) Commission with ample facts to support its conviction that Peltier personally shot Agent Coler and Williams." And further, "While Mr. Peltier, asserts 'the Commission identified no plausible evidence that [he] shot the agents after they were incapacitated,' this statement is simply not true. The evidence linking Mr. Peltier to these crimes is enumerated above. The most damning evidence, the .223 shell casing found in Agent Coler's trunk, may be more equivocal after the surfacing of the October 2nd teletype, but it has not been 'ruled out,' as Mr. Peltier contends. There is no direct evidence that Mr. Peltier shot the agents because no one testified they saw him pull the trigger. But as we stated above, and restate here, the body of circumstantial evidence underlying the Commission's decision is sufficient for the purpose of rational basis review.” (Emphasis added) [vi]
4) “The use of the affidavits of Myrtle Poor Bear in the extradition proceedings was, to say the least, a clear abuse of the investigative process of the F.B.I.”
So critical was this comment by the court that it was relegated to a…footnote.
Standing alone, and proffered by Peltier and his attorneys, since it was first published in the denial of his direct appeal of his conviction in 1978, this is a damning statement and was used to incite Peltier supporters against the Government. However, they failed to finish the quote which placed it in complete context within the record:
"This was conceded by government counsel on the hearing in this court. It does not, however, follow that the testimony of this obviously confused and 'unbelievable' witness (referring to Myrtle Poor Bear) should have been permitted under either theory advanced by Peltier as hereinbefore set forth." [vii]
NO LESS IRONIC, and tucked away in the record, was Peltier's own attorney's opinion of Myrtle Poor Bear when they believed the Government would call Poor Bear as a witness. They characterized her as a:
"…witness whose mental imbalance is so gross as to render her testimony unbelievable." [viii]
In other words, Peltier wanted it both ways; using Poor Bear as an excuse for his allegedly improper extradition from Canada, but then castigating her when she was a potential witness.
But it gets better. This same court on the direct appeal stated;
“Secondly, the direct and circumstantial evidence of Peltier’s guilt was strong, and in our opinion, the admission of these additional exhibits did not prejudice the defendant’s chances for acquittal.” (Emphasis added) [ix]
To make it clear that the USDOJ Pardon Attorney has all the relevant facts regarding Peltier’s guilt and the sham of forty years of myth and folklore and his outrageously unrepentant public statements, what follows are quotes from letters received by the NPPA from the U.S. Pardon Attorney:
January 12, 2010: “For your information, Mr. Peltier’s application was carefully considered in this Department and the White House, and the decision was reached that favorable action was not warranted. His application was therefore denied on January 19, 2009.”
“Your correspondence has be made a permanent part of Mr. Peltier’s clemency file. Thank you for writing to the President.”
January 13, 2012: “Please be advised that to date, Mr. Peltier has not reapplied for executive clemency. Your letter will be retained and added to any case file created in the event that Mr. Peltier re-applies for executive clemency in the future.”
So, notwithstanding the bogus current clemency application, the truth and facts are already where they belong.
Dear President Obama:
If Leonard Peltier’s clemency application should ever reach your desk, please weigh it in regard to just two of Peltier’s many public statements concerning the unprovoked attack and brutal murders of two federal agents, “And really, if necessary, I’d do it all over again because it was the right thing to do (2010),” and, “I don’t regret any of this for a minute (2014).”
“In the Spirit of Coler and Williams”
[i] One possibility; the firm of Dewey, Fleeceum and Howe, 69 Moodnlight Road, Mound House, NV 89706
[iii] http://www.noparolepeltier.com/debate.html#birthday (Re Judge Gerald Heaney)