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Monday, October 16, 2017

PELTIER: THE HEANEY FACTOR

Dear Supporters:

In the roll top desk in my study is an 8x10 color photograph.

It’s been there a long time.

I don’t need it on display but I do look at it from time to time as I read, research and write.

The photo is graphic and disturbing, a tragic moment frozen in time on June 26, 1975.

Two young men, one shirtless, lying face down in the grass next to a bullet riddled gold Chevrolet. (Footnote 1)

I never knew FBI Special Agents Jack R. Coler or Ronald A. Williams, and it wouldn’t matter if I had.

Reflecting back over the past 17 ½ years and all the countless hours spent on Peltier issues, there seems to be one central point during the lengthy process of his appeals that serves as the lynchpin of Peltier’s “otherwise notoriously convoluted procedural history” through the criminal justice system. (Fn: 2)

Even more than all the government’s evidence against Peltier, the Honorable Gerald Heaney (1918 – 2010) of the Eighth Circuit Court of Appeals (an unquestioned example of America’s Greatest Generation) undeniably played the most critical role in the fact that Peltier remains incarcerated to this day. (Fn: 3)

Judge Heaney was both lauded and reviled by Peltier and Peltierites depending on which position served their purpose at the moment.

The attack

Over the years Peltier has had numerous competent attorneys (many paid for by the largesse of the American taxpayer, others pro bono and an unknown number paid for by funds—the source of which remains under scrutiny) but there are a few exceptions, this being one of them:

In November 2001, Peltier’s then attorney filed an appeal to the Eighth Circuit Court of Appeals (of which Judge Heaney was a member), citing Rule 35, a “renewed motion to remove or reduce his sentence.” The motion, which included several other claims, was denied in 2002 because it was filed “…twenty-two years after the 120-day filing period had expired.” During that 22 years Peltier had already had opportunities under Federal Rules 35 and 2255 that had been previously considered and denied. The unanimous court decision (Judges Magnusson, Arnold and Heaney) reviewed prior appellate history and included this most salient of all facts:

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.

Peltier's attorney publicly and angrily stated that this ruling was "a disgrace" and further proof that "nobody who seems to care about Leonard is in a position of responsibility or authority," adding, "They're inclined to let him rot in prison." (Fn:  4)  

This attorney wasn’t insightful enough to see the foolishness of his public pronouncement, let alone his own flawed logic. The reality was that all three judges were—in fact—in a position of “responsibility and authority” and that should have been patently evident, the most important and relevant one—to Peltier—being Judge Heaney.

From the outset Peltier has fashioned and promoted himself as a political prisoner.

Peltier claims a vast conspiracy among the government, FBI and the courts “in a corrupted pre-planned trial,” those in government who are “blind, stupid, or without human feelings,” that the “white racist America is the criminal,” accusing the presiding judge as  a high-ranking member of the white racist American establishment.” (Fn: 5)  Peltier claims to have “became a scapegoat” and “was the last Indian left to railroad for the deaths of their two agents.” (Fn: 6) 

It should be unmistakably apparent; there are no grey areas in Peltier’s public statements.

There is no other way to interpret Peltier’s decades-long conspiracy theory, but that by implication, it must also include the Honorable Judge Gerald Heaney.

The praise

Judge Heaney obviously held a deep concern for the treatment and plight of Native Americans and in 1991 wrote an impassioned letter to U.S. Senator Daniel Inouye (another WWII hero), who was then on the Select Committee on Indian Affairs.  Judge Heaney set out some details asking for consideration for clemency by President George H.W. Bush, stating in part, that the U.S. government must share the responsibility for the agents’ deaths and that “At some point , a healing process must begin. We as a nation must treat Native Americans more fairly.” (See below for details.)  (Fn: 7)

Peltier, Peltierites and the various “defense committees” over the years have vigorously promoted this letter to support bids for parole, clemency, commutation, and Peltier’s claimed innocence.

The reality

 (Brief background: Peltier was convicted and sentenced in U.S. District Court, Fargo, North Dakota in 1977. Under the Freedom of Information Act Peltier subsequently received, among other documents, an October 2, 1975 FBI Teletype concerning ballistic testing related to a .223 shell casing (located in the trunk of Agent Coler’s vehicle) and the Wichita AR-15 related to Peltier. In 1982, under Rule 2255, Peltier moved for a new trial claiming that this new evidence was deliberately withheld and violated his constitutional right to due process based on the U.S. Supreme Court decision, Brady v. Maryland.  The Government’s position was that the Teletype was not in violation of Brady. The District Court agreed and denied the motion for a new trial. Peltier appealed to the Eighth Circuit Court of Appeals and that court [Judge Heaney] remanded the matter back to the District Court for an evidentiary hearing [ballistics hearing] on the meaning of the October 2, 1975 Teletype. In October 1984 a three-day hearing was held and the District Court affirmed that the Teletype was considered preliminary information, which the prosecution had no obligation to disclose, thus denying Peltier’s Rule 2255 motion. Peltier appealed this denial again to the Eighth Circuit. That court [Judge Heaney] ruled against Peltier based on Brady and U.S. v. Bagley. See details below.)

In 1991 Judge Heaney appeared on a pitifully unbalanced 60 Minutes segment hosted by Steve Kroft where Judge Heaney, Peltier and others were interviewed. The program was nothing more than a Peltier folklore propaganda piece taken straight from the Peltier playbook. The errors in this program would take many pages to explain. (Fn: 8) 

Kroft asked Judge Heaney the proverbial $64 question:

“Do you believe he got a fair trial? 

Judge Heaney’s unscripted reply, seemingly to Kroft’s surprise (as if he was expecting a blockbuster moment):

“I believe he got a fair trial, not a perfect trial, but a fair trial.”

(Anyone in law enforcement and the criminal justice system knows that perfect trials are as rare as unicorns.)

The Heaney letter:

Although Judge Heaney did make his personal feelings known supporting Peltier’s bid for clemency it must be made very clear that he never implied in any way that Peltier was innocent. Quite the contrary, Judge Heaney’s letter included:

            --“No new evidence has been called to my attention which would cause me to change the conclusion reached in that case.” (Clearly implying that Peltier was, and remains, guilty.)

            --“Third, the record persuades me that more than one person was involved in the shooting of the FBI agents. Again, this fact is not a legal justification for Peltier’s actions, but it is a mitigating circumstance.”  (In other words, sharing the blame does not lessen Peltier’s guilt.)

The Heaney decisions:

In the appellate decision of the evidentiary (ballistics) hearing, authored by Judge Heaney, we find the following: (Fn: 9)

            --We then held that the evidence was sufficient for the jury to find Peltier responsible for the murders.

            --Constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial.

            --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 its own ballistics expert, it offered no contrary evidence.

            This comment is so crucial it bears repeating:

--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 its own ballistics expert, it offered no contrary evidence.

--There is a possibility that the jury would have acquitted Leonard Peltier had the records and data improperly withheld from the defense been available to him in order to better exploit and reinforce the inconsistencies casting strong doubts on the government’s case. 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. 

(In other words, contrary to Peltier’s persistent claims over the years that he lost this decision on a technicality, it is clear that the decision was made based on a finding of fact, the entire court record, and the law. It appears that it may have been a tough decision but nonetheless Judges Heaney, Ross and Gibson agreed. It was unanimous with no dissenting opinion.)

Postscript

With all due respect to the late Judge Heaney, much of his passion was misplaced.

Heaney claimed that the government over-reacted during the American Indian Movement (AIM) takeover of the hamlet of Wounded Knee in 1973. 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. While the government’s role in escalating the conflict into a firefight cannot serve as a legal justification for the killing of the FBI agents at short range, it can properly be considered as a mitigating circumstance. Leonard Peltier was tried, found guilty, and sentenced. He has now served more than fourteen years in the federal penitentiary.

Really?  Mitigating circumstance? Does this imply that killing the Agents at long-range, would have made a difference, or that serving only seven years for each brutal murder is a sufficient sentence? The personal opinion and passion in the language seems to imply as much.

Referring to the brutal murder of Special Agents Coler and Williams as a “firefight” denigrates the memory and sacrifice of two young men who were performing their lawful duties. We know there was no “firefight” because an eyewitness (Agent Williams) described over the radio that those they followed into a field off Highway 18 were about to take them under fire. This was an unprovoked attack, joined in by a number of other AIM cowards unloading a barrage of rifle fire in a deadly crossfire on the Agents trapped in an open field.  There was no escalation, as Heaney asserts, by the government on June 26th but an onslaught of murderous and cowardly AIM assailants.  

Heaney erred by compressing the timeline between AIM’s utter destruction of personal property and artifacts and the terrorizing of residents at Wounded Knee in 1973 and the Agents’ murders at Jumping Bull over two years later.

In referencing “legitimate grievances” of Native Americans, Judge Heaney picked the wrong gang to endorse. AIM wreaked havoc across the country. The self-serving leadership of the likes of Russell Means, Dennis Banks and the Bellecourts proved, over time, that AIM contributed nothing of value to Native America.  AIM’s history is anathema to Native American concerns. It may have brought Native issues to the forefront, but did so along a destructive path. If there is any doubt, ask the family of Perry Ray Robinson, murdered by AIM during the Wounded Knee takeover (along with the many rumors that there are more AIM victims buried in unmarked graves), or the daughters of Anna Mae Aquash, the Native activist who had the misfortune to be interrogated at gunpoint by Leonard Peltier. Anna Mae, on orders from AIM hierarchy was kidnapped, raped, shot in the head and dumped in a ravine. Ask Anna Mae’s daughters what they think about Leonard Peltier and AIM. (Fn: 10)

Judge Heaney’s letter, dated April 18, 1991 claimed that the FBI used improper tactics in securing Peltier’s extradition from Canada.

This was a hotly debated issue publicly, and in the courts (particularly over the Myrtle Poor Bear affidavits). However, the Canadian government fully reviewed the proceedings and in 1999 stated as a matter of public record that Peltier was lawfully extradited and that the circumstantial evidence…taken alone, constituted sufficient evidence to justify Mr. Peltier’s committal on the two murder charges. (Fn: 11) Judge Heaney was in senior status at the time and still hearing cases when the Canadian government published its conclusion in a detailed letter to U.S. Attorney General Janet Reno. However, there is no indication that Judge Heaney attempted to correct his erroneous conclusion on Peltier’s extradition.

Heaney’s letter and private opinions, as a sitting senior federal judge, were intended to influence consideration for clemency by the President. It offered a personal bias that perhaps was clouded by strong feelings about the historical mistreatment of First Americans. He spoke of “legitimate” Native American grievances while ignoring the turmoil and destruction caused by AIM. Judge Heaney did not recognize that any “healing” could not begin with the likes of the murderous Leonard Peltier and that Peltier should only be treated as “fairly” as he treated Jack Coler and Ron Williams.

Nonetheless, Gerald Heaney set aside those personal beliefs when it came to fulfilling his obligation as a judge. He then acted as the outstanding and dedicated jurist he was and ruled against Peltier based on the law. The result of which is the sole reason why Peltier remains where he belongs.

“In the Spirit of Coler and Williams”
Ed Woods

Footnotes
1) It is undisputed that Agents’ Coler and Williams (Ron with a defensive wound) were both shot in the face at point-blank range, killing them instantly. Yet, when responding FBI Agents and law enforcement discovered them, their lifeless bodies were obviously rolled over to face the ground. It is not known who among the AIM cowards moved the mutilated agents’ bodies, one, or maybe all. In Indian folklore counting coup was when a vanquished enemy was touched. Being rolled over to face Mother Earth also ensured that the dead would not meet the Creator in the afterlife. After an unprovoked attack and brutal murders the spineless AIM antagonists could hardly—as Peltier has claimed of those who were there that day—call themselves warriors.
2) U.S. District Court, District of North Dakota; Memorandum and Order, U.S. v. Peltier, C77-3003, filed February 25, 2002.
3) Gerald Heaney was truly a member of America's Greatest Generation. At the outbreak of World War II, as a young lawyer, he could have avoided the heat of battle and used his legal talents in a safe stateside, or behind the front lines, assignment. Instead, he enlisted as a private and then sought a U.S. Army commission and became a young infantry officer and Ranger, participating in the D-Day invasion (earning a Silver Star) along with several significant battles through the end of war in Europe. His courage can be neither denied nor ignored. (This writer proudly shares a small part of Judge Heaney's background, having also graduated from the United States Army, Infantry Officer’s Candidate School, Ft. Benning, Georgia, although twenty-four years and several conflicts later.) Judge Heaney was a jurist of impeccable reputation and experience. His character is irreproachable and unquestioned, and we know this because of a very specific example from the Peltier case.

Gerald Heaney was appointed by President Lyndon Johnson to fill a new seat on the Eighth District Court of Appeals in 1966, went into senior status in 1988 and then served part-time until 2006. Along with two other appointments, President Johnson effectively altered the balance of the court. Judge Heaney was more likely to support claims for civil liberties and engage in an activist judiciary. He was more likely to write dissenting opinions and authored many of the court’s decisions, as he did in the Peltier case.
5) Peter Matthiessen, In the Spirit of Crazy Horse (New York: Penguin Books, 1991 361-365.
6) Leonard Peltier, Prison Writings (New York: St. Martin’s Press, 1999) 140, 162 and Part IV.
7) Judge Heaney letter to Senator Inouye: http://www.noparolepeltier.com/heaney.html. https://www.whoisleonardpeltier.info, In Peltier’s website, under “resources” and “legal” there is a reference to Judge Heaney’s letter, however, this letter, along with references from other claimed resources, cannot be accessed to read.
8) 60 Minutes, hosted by Steve Kroft: http://www.dailymotion.com/video/xc9ofu
There are so many factual errors that today this broadcast would be considered fake news. Skewed details and factual inaccuracies are prevalent throughout the program. Just one of many glaring errors is Kroft referring to Peltier’s AR-15 while showing a photo of a hunting rifle. Critically, in this segment Peltier makes his first public admission that he fired at the agents, “Yes, I fired at them.” This was in 1991, yet in Peltier’s 1999 (Yes, eight years later) autobiography, Prison Writings, he said “I fired off a few shots above their heads, not trying to hit anything or anyone, just to show that we had some kind of defense so they didn’t just roll in and slaughter us.”
(p. 125) It’s always easy to keep the facts straight when telling the truth but Peltier has changed his version of what happened that day so many times that it’s tough to keep the lies straight, causing an everlasting stink. Apparently Peltier forgot what he told Kroft. The segment includes a cameo of the fictional Mr. X with Peltier offering another explanation about why he couldn’t talk about that person or what he allegedly did. Yet, in Prison Writings Peltier makes no mention of Mr. X or the infamous red pickup. Wonder why? There is a pattern here.
9) 1986 Eighth Circuit Hearing decision:
Joseph & John Trimbach, American Indian Mafia (Denver: Outskirts Press, Inc. 2008)
11) Canadian letter re Peltier extradition:

Tuesday, October 3, 2017

PELTIER: TAX DEDUCTIBLE & LEGAL ISSUES, PART III

Dear Supporters:

Regarding the ILPDC 9/19/2017 press release, let’s be very clear about who is responsible for this information. The original Leonard Peltier Defense Committee (LPDC) that morphed into the Leonard Peltier Defense Offense Committee (LPDOC), that mutated into the International Leonard Peltier Defense Committee (ILPDC) has made it unmistakable over the years—from Peltier himself, that nothing is released or published without his approval. So, although this message is signed from “Paulette,” Leonard Peltier owns it. (Footnote 1)

The message begins with the caveat to “…please at least read the end of this letter—our good friend Leonard Peltier has a serious need.” (More on that in a moment.)

Among other things, Peltier wants the ILPDC relocated from Fargo, ND to somewhere near USP Coleman near Tampa, Florida.  (If it occurs, it will be one of many moves over the years.)

There is a “strategy for legal work” and the “legal team has generated a solid multi-faceted approach which outlines several avenues which may lead to Leonard’s release.” The goal is to get Peltier’s “case back into the court.” But Peltier also wants $125,000 for legal fees.

Legal Issues: 

This is a familiar refrain and it will be extraordinarily interesting to see what the solid multi-faceted legal strategy will be, a strategy that’s prompting a hundred-plus grand for attorney’s fees. The legal history of Peltier’s conviction is as transparent as glass and has been under a proverbial neutron microscope for over four decades where every issue (legitimate and frivolous) has been raised and resolved—none in Peltier’s favor. As for representation, the Eighth Circuit Court of Appeals acknowledged, “Peltier was equally well-represented at trial and on appeal.”

Since then, Peltier has had many capable and concerned attorneys who dedicated hundreds, if not thousands of hours of pro bono efforts exploring all avenues of potential relief, all without success. Some of these attorneys, well intentioned and dedicated, have been literally kicked to the curb after having to deal with what appears to be Peltier’s ungrateful and taxing personality.

Although, there have been a few exceptions, like an attorney who absurdly stated publicly  …they (the FBI and government) don’t have any creativity, they don’t come up with anything new. They don’t have any greater ability to explain their justification for their position. It’s a very wooden position, kill an FBI agent and live the rest of your life in prison. I don’t think that’s going to impress very many people who aren’t already of the same opinion.” This was a nonsensical and moronic rhetorical statement that proved its own misguided premise. Yes, no mistaking that when you kill (two) FBI agents it triggers (no pun intended) spending one’s life in prison.  Hopefully, this effort was pro bono. Or, an attorney who when called upon to provide sworn testimony in a peripheral matter, took the fifth.

* * *
This blog was started after the 9/19/17 press release but wasn’t completed before the ILPDC sent out another message on 9/30/17 spelling out the hotly anticipated solid multifaceted legal strategy. (Fn.  2) The strategy was broken down into three categories:

1) Habeas Corpus: “On the grounds that Leonard’s incarceration is unconstitutional.” That road has been driven down many times by capable attorneys. There are no “new grounds.” It’s a dead end. But with comments like, “may be difficult” and “there is no guarantee,” at least there’s a hint of reality that this is a waste of time and billable hours.

2) Parole: It should be fairly clear that parole is off the table for Peltier with the 2009 fifteen-year reconsideration hearing (being flopped until 2024). Peltier, by his own admission has not been a model inmate, having served over five years in solitary. He has received many disciplinary actions; even transfers and no one should forget the armed escape from Lompoc Penitentiary. For which, by the way, Peltier has to serve an additional seven consecutive years.  (Peltierites always seem to forget that little nugget.)

3) Compassionate release: “The possibility…based on declining health,” “...intended for prisoners with terminal illnesses,” “no definitive regulations,” “Leonard’s medical condition does not make a release on this basis possible although hiring of outside medical experts may be necessary,” “…open to interpretation,” all paint a an obviously unproductive and bleak picture.

Nevertheless, how’s this for compassion? Show Peltier as much compassion as he gave to Jack Coler and Ron Williams. That would be absolutely, none!

The solid multifaceted legal strategy seems a little weak in the knees and has about as much likelihood of success as Satan ice skating to work. Although, the strategy does make it sound urgent and dire for the unsuspecting to fork over some cash.  At least that’s what it sounds like.

* * *
Tax deductible and the IRS:

The 9/19/17 message ended with:

Please consider a ttax-deductible (sic) donation to Leonard’s legal team. The ILPDC will insure (sic) your gift goes 100% toward the pursuit of Leonard’s freedom.” And, Please send what you can today! Don’t hesitate. Don’t depend on someone else. Please lend a hand today. Let’s do this together and position Leonard’s legal team for success!” (Both statements contain links directly to Peltier’s website.)

Calling donations a “gift” is a humorous misnomer when combined with the claim that monies sent are “tax-deductible” and just as critical, 100% will go to Peltier’s legal team and defense.

Let’s explore—again—why Peltier is not a charity case and soliciting tax-deductible donations for a convicted incarcerated felon is against IRS regulations as required by law.

IRS regulations are fairly clear about who can and cannot make a claim for tax-deductible donations:

To be tax-exempt under section 501(c)(3) of the Internal Revenue Code, an organization must be organized and operated exclusively for exempt purposes set forth in section 501(c)(3), and none of its earnings may inure to any private shareholder or individual…The organization must not be organized or operated for the benefit of private interests, and no part of a section 501(c)(3) organization's net earnings may inure to the benefit of any private shareholder or individual.

A section 501(c)(3) organization must not be organized or operated for the benefit of private interests, such as the creator or the creator's family, shareholders of the organization, other designated individuals, or persons controlled directly or indirectly by such private interests. No part of the net earnings of a section 501(c)(3) organization may inure to the benefit of any private shareholder or individual. A private shareholder or individual is a person having a personal and private interest in the activities of the organization.
(Fn. 3)


(On 9/25/17 a polite email was sent to the ILPDC advising of potential issues with claiming tax-deductible donations. As of this blog, no response has been received. Fn. 4)

Concerned citizens, exercising their First Amendment rights are able to inquire of the IRS whether it is legal for a convict serving consecutive life sentences—for a brutal double murder—can claim that any money sent to an organization funded on his behalf can solicit those donations as “tax-deductible.” Likewise, under the guise of a 501(c)3, redirect money for the same purpose to an individual and/or his family for an alleged legal fund.

The IRS makes the process very simple utilizing #13909, Tax-Exempt Organization Complaint (Referral) form, available on the irs.gov website. (Fn. 5)

Leonard Peltier is a classic example of the whim of Peltierites who avoid knowledge that conflict with the myth and folklore. Knowledge that interferes with short-term interests to milk the cash cow dry.

The 9/30/17 release ended with an issue of cancelled visitor days at USP Coleman:

Leonard was very upset as he say’s ‘time is too short for me, and to not see my great grandson is very upsetting.’ Leonard has very few pleasures in life, the most important is his visits with family and friends.”

Pleasures? Life? Upsetting? Time, thanks to the vicious acts of convicted felon Leonard Peltier, was violently ended for Jack Coler and Ron Williams and how important it would have been for them to see their family and friends.

“In the Spirit of Coler and Williams”
Ed Woods

Footnotes:
1) goo.gl/PEiCCH
2) goo.gl/tsASo5
4) From: Ed Woods
Subject: Paulette posting 9/19/17
Date: September 25, 2017 at 10:39:27 AM EDT
To: Dauteuil Paulette

Dear Ms. Dauteuil:

I know that I am not the most popular person to hear from, but please give me a moment to share some information. 

Your recent posting was very sincere and heartfelt and I understand and appreciate your commitment, however, when in comes to Leonard, we will just have to agree to disagree on certain matters.

Although, and perhaps you were not aware and may have done it for altruistic reasons,  but advertising tax-deductible donations for Leonard’s legal fund and attorney’s fees is against IRS laws and could create legal issues for him, the ILPDC and the IRC (see below). The IRC, even as a 501(c)3 is cloaking its "tax-deductible” advertising by also funneling funds for other purposes. 

Leonard and his supporters are entitled to raise as much as they can in donations but he also needs to avoid potential issues with the IRS.

Please let me know your thoughts.

Regards,
Ed W.

(Note: The 9/30/17 press release did not include that solicitations are tax-deductible.  Perhaps Ms. Dauteuil took heed of the advice. However, that does not alter the fact that for many years Peltier has possibly violated IRS regulations regarding tax-exempt organizations and tax-deductible donations.)