A recent article entitled “The Pine Ridge Reservation, Prisoner of War Camp #344” on the website for the publication, New Observations, referenced Leonard Peltier and his artwork. (Footnote 1)
The article covered several topics and lauds Peltier’s artwork for its representation of Native life and culture, joy and despair. It also takes a giant leap of faith presuming that Peltier can stand beside the likes of “Vaclav Havel, Nelson Mandela, Martin Luther King Jr. and others who has inspired us to strive to become our best selves.” However, this was preceded with a factually incorrect statement that only serves to perpetuate Peltier’s long-standing myth and folklore.
The article states:
Ballistic evidence that proves Leonard Peltier’s gun was not used in the death of two FBI agents on Pine Ridge on June 26, 1975 was not allowed to be presented during his appeals trial. In any other country, he would have been released by now. (Emphasis added)
(The source of this statement comes from Peltier himself during an interview for New Observations. Response to a question about his conviction, Peltier erroneously claimed, “The prosecutors, with the assistance of the FBI, hid ballistics testing that showed the weapon prosecutors tried to link to me was not the weapon used to kill the agents.” This is just one of countless examples of Peltier either forgetting the history of his case or more likely offering another frequent fabrication that people will just accept it at face value or fail to thoroughly research Peltier’s claims.)
(Actually, “any other country” ignores a stark reality. In many other countries, once ‘convicted,’ the likes of Leonard Peltier would be taken out back and shot. Here, however, he received due process and was well represented through multiple appeals.)
The factual errors in the New Observations quote are:
-There was no proof of ballistics evidence that proved Peltier’s “gun” was not used in the murder of FBI Agents Coler and Williams.
-It is incorrect to claim that ballistics evidence was not allowed to be presented.
-The referenced “appeals trial” is inaccurate; it was a court-ordered hearing, not a trial.
The ballistics issue relates to the crime scene and a .223 shell casing located in the trunk of Agent Coler’s government vehicle and Peltier’s rifle (referred to in appellate filings as the “Wichita AR-15”) that was recovered in a burned-out station wagon on a Kansas turnpike as AIM protagonist, Bob Robideau, and others, were making their escape from the carnage at Jumping Bull.
After his conviction, Peltier received government documents through the Freedom of Information Act. One of those documents was an October 2, 1975 FBI Laboratory Teletype regarding ballistics examination of Peltier’s AR-15 and the recovered shell casing.
Based on the belief that this Teletype represented “new evidence,” Peltier made a series of appeals claiming he was entitled to have his conviction vacated and was entitled to a new trial based on a Constitutional violation related to Brady v. Maryland (a prosecution discovery requirement). The appeals resulted in a three-day (ballistics) hearing.
The timeline of Peltier’s appeal on the ballistics evidence (Teletype) follows:
1) Peltier appealed to the District Court (the court in which he was tried and convicted). That court denied this motion adding, “As noted by the Court of Appeals…the evidence of Peltier’s guilt was strong.” This decision further reviewed the prior direct appeal decision by the Eighth Circuit Court of Appeals, which stated, as a finding of fact based on the complete trial record, that Peltier was the only one among the AIM members possessing an AR-15 and who had fled Pine ridge with that weapon. The Government’s position was that the Teletype did not constitute new evidence and was not Brady material. (Fn. 2)
2) Peltier appealed the lower court’s denial to the Eighth Circuit Court of Appeals that stated in part: “After a careful review of the decision below and the records on appeal, we find no error in the district court’s decision to dismiss without a hearing all allegations of purported prejudicial concealment by the government save the one example detailed in Peltier’s brief and specifically argued to this Court. That example concerns the validity of the FBI ballistics tests linking a .223 caliber bullet casing found during the investigation of the murders in questions to an AR-15 rifle attributed to Peltier on the day of the killings.” “…we remand to the district court for an evidentiary hearing. At this hearing the court shall limit its consideration to any testimony of documentary evidence relevant to the meaning of the October 2, 1975, Teletype and its relation to the ballistics evidence introduced at Peltier’s trial.” (Fn. 3*)
3) October 1 – 3, 1984, Evidentiary (ballistics) hearing: The entire sequence of events concerning submissions (total of three) of hundreds of items of evidence to the FBI Laboratory and the timing of the examination of the “Wichita AR-15” and the .223 shell casing was explored at great length. The court concluded, as a finding of fact what the word “different” in the October 2, 1975 Teletype meant and denied Peltier’s ¶2255 motion based on an alleged Brady violation. The court noted that “Defendant had an independent firearms expert present in the courtroom at the hearing, but he was not called to testify.” (Fn. 4)
4) Peltier appealed this denial to the Eighth Circuit. That court addressed prior filings and decisions, stating, “We then held that the evidence was sufficient for the jury to find Peltier responsible for the murders.” At considerable length the court reviewed the evidentiary issues relating to the Brady material and the application of Bagley (U.S. v. Bagley) legal standards. Regarding Brady, the court stated, “Constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermined confidence in the outcome of the trial.” Although critical of some aspects of Peltier’s conviction, the court 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.” (Fn. 5*)
Further, “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. That point was not disputed; although the defense had its own ballistics expert, it offered no contrary evidence.” (Fn. 6*)
* * *
The inaccurate statement by New Observations (sourced to Peltier) that there was evidence proving that Peltier’s weapon was not used in the murder of Agents’ Coler and Williams and that Peltier was not allowed to present such evidence is simply not true and only serves to reinforce the decades-long false narrative of innocence and manufactured myth and folklore surrounding Leonard Peltier.
Contrary to Peltier’s claims, there were no Constitutional violations regarding his conviction. Had there been just one, any discussion regarding Peltier would have evaporated long ago. After numerous appeals by many competent attorneys Peltier’s conviction and sentence have stood the test of time. As well, over the years, Peltier’s public and written statements only serve to highlight his unrepentant guilt and where reality is finally showing itself.**
“In the Spirit of Coler and Williams”
Footnotes 1)https://static1.squarespace.com/static/5c0adfa7b40b9d179f6ed5f8/t/5eefdde13153d0544b86099c/1592778224351/NO-135-The-Pine-Ridge-Reservation.pdfNew Observationsarticle.
2) Title 28 U.S.C. ¶2255motion to the U.S. District Court, District of North Dakota:
3) Appeal to the Eighth Circuit: remanded back to the District Court for an evidentiary hearing.* http://www.noparolepeltier.com/731.html
4) Evidentiary (ballistics) hearing: http://www.noparolepeltier.com/609.html
5) Eighth Circuit Decision; denied re Brady (Brady v. Maryland) and Bagley (U.S. v. Bagley).* http://www.noparolepeltier.com/800.html
6) “ “ (“The .223 casing” section)
*Hon. Gerald Heaney (Rest in Peace), Eighth Circuit Court of Appeals, played a crucial role in the Peltier saga. Notwithstanding his own personal feelings regarding Native American issues he made his decisions based on the law. In a televised interview Judge Heaney was asked if Peltier received a fair trial. His response, “He received a fair trial. Not a perfect trial, but a fair trial.” http://wwwnoparolepeltiercom-justice.blogspot.com/2017/01/peltier-judge-heaney-redux.html
**Peltier supporters must be constantly reminded of Peltier’s second biggest lie (the first of claims of innocence); the false alibi of the phantom Mr. X. Peltier claimed as much on film, “This story is true.” It wasn’t then or now, but only another fabrication that never existed. http://www.noparolepeltier.com/movie.html