PELTIER: ’Judge’ KEVIN H. SHARP…MISPLACED PASSION…PART 2 [i]
Dear Supporters:
Mr. Sharp may have his heart in the right place. He may fundamentally be a very decent person, but legal experience aside, he has missed the mark completely regarding Leonard Peltier.
What follows is a review and factual response to Leonard Peltier’s pro bono attorney, former federal judge, Kevin H. Sharp, and his public statements from the January 31, 2022, Democracy Now podcast, “The War and Peace Report.” (The responses below are only to Mr. Sharp’s relevant public statements. Footnotes provide additional commentary and references.)
* * *
AMY GODMAN: So, Judge Sharp, talk about why you took on Peltier’s case.
1) KEVIN SHARP: That media attention caught the attention of a woman, Willie Nelson’s ex-wife, Connie Nelson, in Texas, who asked someone to send me all of the information on Leonard’s case. I sat down to read the stacks, just reams of information on Leonard’s case, not really coming at it with any preconceived notion. I didn’t know much about it. I was only twelve years old when the events happened. And what I saw was shocking. The constitutional violations just continued to stack up, and I was really outraged that this man was still in prison, knowing what everyone now knew. And so, with that, I agreed to take on this case pro bono.
NPPA RESPONSE: If Mr. Sharp received the usual Peltier and Defense Committee boilerplate, it’s no wonder it initially caught his attention. The naked myth and folklore are indeed disturbing and compelling. If he stopped there it would be little wonder that his first impression of Peltier’s conviction was troubling.[ii]
To state that there were “constitutional violations” (plural) grossly distorts the legal record of over a dozen meticulous reviews by U.S. Courts of Appeal, an evidentiary hearing and twice being denied certiorari by the U.S. Supreme Court. However, Mr. Sharp later provides us with a dubious explanation claiming, “standards were different.” If Mr. Sharp is as informed as he wants us to believe, then by inference he is much smarter than all the judges who painstakingly reviewed Peltier’s conviction and appeals. The reality? Had there been just one constitutional violation, we would not be having this dialogue today.
2) KEVIN SHARP: Well, they relate to each other. The things that most shocked me was the level of outright misconduct by the U.S. Attorney’s Office, the then U.S. Attorney’s Office, and the then FBI, what they did in the form of intimidating and threatening witnesses, hiding exculpatory evidence, suborning perjury. And all of that is known. When Leonard appealed all of these issues over the years, some of it was known, some of it wasn’t, but the standards were different. And if this case were brought up today, no question: This verdict gets overthrown.
And ultimately, even the U.S. Attorney’s Office had to admit that they don’t know who killed the agents. And so, we’re sitting here with the prosecutor saying, “We don’t know who did it, but, sure, life sentence for this man seems fine.” As a matter of fact, in the early ‘90s, 60 Minutes did a segment on this, and they talked to the assistant U.S. attorney who tried the case, and specifically asked him about perjury of one of the witnesses, a woman named Myrtle Poor Bear. And initially, the AUSA said, “I didn’t know it was perjured testimony,” but then he looks in the camera and says, “But so what if I did? It doesn’t bother my conscience one whit.” And at that, I’m looking at that and going, they knew it, and he’s admitting it here on national television.
NPPA RESPONSE: There is quite a bit to unpack here, however:
Perjury and Poor Bear: Mr. Sharp states, “As a matter of fact…” (in the terribly one-sided 60 Minutes segment), that the Assistant U.S. Attorney was “specifically asked about perjury of one of the witnesses, a woman named Myrtle Poor Bear.”
Would it come as a surprise to Mr. Sharp that being “specifically asked…about perjury” never occurred? Why the inaccurate attribution? [iii]
What Steve Kroft actually said in the 1992, 60 Minutes segment was, “Lynn Crooks put together the Peltier case for the government. I spoke with him three years ago about the Poor Bear affidavits and he defended their use.” AUSA Lynn Crooks responded “It doesn’t bother my conscience. If everything they said is right on now it doesn’t bother my conscience one bit. The man’s a murderer, he got convicted on fair evidence. Doesn’t bother my conscience one bit. I don’t agree that there’s anything wrong with that, I can tell you that it doesn’t bother my conscience if we did.”
Does Mr. Sharp understand that Myrtle Poor Bear never testified against Peltier?
The Poor Bear saga involved affidavits that were provided to the Canadian authorities during the extradition process. Poor Bear apparently seemed credible at the time as she added to, as was later determined, and embellished her story. But, the end of this episode rests with the October 12, 1999 letter from the Minister of Justice and Attorney General of Canada, A. Anne McLellan to U.S. Attorney General, Janet Reno where they clearly lay out that “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.” “Subsequently, further submissions respecting the third Poor Bear affidavit were made to the Supreme Court of Canada, as well as the appellate court in the United States.” “The record demonstrates that the case was fully considered by the courts and by the then Minister of Justice.” [iv]
The final point that Mr. Sharp would likely not want to recount is that Peltier’s own attorney rudely dismissed Myrtle Poor Bear. When it appeared that the government may have planned calling Poor Bear as a witness, Peltier’s own attorney, John Lowe, stated “…a witness whose mental imbalance is so gross as to render her testimony unbelievable.” The Judge agreed.
Mr. Sharp’s reliance on attacking the government’s case by misrepresenting the Poor Bear matter is inconsistent with the facts.
AUSA Lynn Crooks’ reply to Kroft related to the Poor Bear affidavits, e.g., Peltier’s extradition from Canada, and not Peltier’s trial or conviction. The 60 Minutes creative editing of Kroft’s prior questioning of Lynn Crooks appeared to be a deliberate out-of-context mixing of his rather expressive response on the allegations regarding Poor Bear.
Mr. Sharp could have mentioned the interview of Eighth Circuit Court of Appeals, Judge Gerald Heaney, who played a crucial role in the Peltier case and had strong views about Native American rights. However, notwithstanding his personal opinions on Peltier appeals before him, he set aside those feelings and made his decisions based on the law. That conclusion cannot be denied as he is asked if Peltier got a fair trial; Judge Heaney responded “I believe he got a fair trial, not a perfect trial, but a fair trial.” [v]
As Mr. Sharp would undoubtedly acknowledge, perfect trials are rare indeed.
Suborning Perjury: It’s not clear whether or not Mr. Sharp is referencing the Poor Bear affidavits with this very serious allegation. Whether he is or not, the Poor Bear saga is a settled matter and was not part of Peltier’s conviction. Poor Bear aside, based on the circumstantial evidence alone, Peltier was lawfully extradited from Canada. Although, Mr. Sharp may be referring to something else that he would need to articulate.
3) KEVIN SHARP: Now once they discovered, one of the things they had done was withhold exculpatory evidence…And that exculpatory evidence in this case was a ballistics test that they had testified did not exist, when in fact it did exist. And it wasn’t discovered for years afterwards. So, by withholding that ballistics test, it deprived Mr. Peltier of a fair trial. The Constitution requires that that be shown. So, you know, these things just stack up, and that’s what so outraged me.
NPPA RESPONSE: “…testified did not exist, when in fact it did exist.” Where in the appellate record is this “fact?” It is difficult to believe Mr. Sharp ever read Peltier’s appellate history, otherwise, he would not make such a provably false statement and offer that somehow it even comes close to the facts and court record. This is directly out of the Peltier playbook and for the edification of Mr. Sharp and any others, what follows is an explanation, along with direct quotes and source references, of the Peltier ballistics issue:
Recovered at the crime scene, located in the trunk of Agent Coler’s vehicle, was a .223 caliber shell casing, the type fired from an AR-15 type rifle. [vi]
“The trial witnesses unanimously testified that there was only one AR-15 in the compound prior to the murders, that this weapon was used exclusively by Leonard Peltier and was carried out by him after the murders. The trial witnesses also testified unanimously that there was only one weapon which was seen firing at the agents that day which was capable of firing .223 ammunition and that this weapon was the AR-15 being utilized by Leonard Peltier.” [vii]
Peltier’s AR-15, referred to in court filings as the ‘Wichita AR-15,’ was recovered, along with other weapons, when the station wagon Bob Robideau and others were using during their escape from Pine Ridge, caught fire and exploded on a Wichita turnpike. Although damaged and unable to fire, the bolt mechanism of the Wichita AR-15 was still functional.
During the normal course of the investigation, hundreds of items of physical evidence were sent to the FBI laboratory for examination. The functioning bolt mechanism from the Wichita AR-15 was used in another AR-15 to test fire exemplars for comparison to other shell casings found at the crime scene, located around the Jumping Bull property, and from other locations as a result of search warrants.
In November 1980, Peltier obtained Freedom of Information Act documents that included an October 2, 1975 FBI Laboratory Teletype regarding initial examinations of some of the recovered weapons and shell casings. Of the documents Peltier received, this was the only one that became the subject of later appeals.
Peltier believed that this was “new evidence” and filed a motion for a new trial with the District Court claiming a violation of his constitutional rights under Brady v. Maryland (the government’s obligation to disclose evidence to be used against a defendant at trial). The District Court denied Peltier’s motion. Peltier then appealed to the Eighth Circuit Court of Appeals (8th Circuit).
The 8th Circuit (Judges’ Heaney, Ross and Gibson) reviewed the matter and remanded the appeal back to the District Court for an evidentiary hearing, stating “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.[viii]
An evidentiary (ballistics) hearing was held at the District Court, October 1-3, 1984. The Government’s position was that the Teletype in question was a preliminary document and that later formal FBI Laboratory Reports, (which were provided during discovery), were controlling. The sequence of events concerning the submissions 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 found in the trunk of Agent Coler’s vehicle, was explored at length. The Court concluded, as a finding of fact, what the word “different” in the October 2, 1975 Teletype meant, and denied Peltier’s motion.[ix]
Further, “Later examination of the remaining .223 bullet casings submitted in connection with the RESMURS case resulted in approximately 114 positive identifications with the Wichita AR-15. {This provides an indication of how many times Peltier fired at the pinned-down Agents.} Thirty-nine of these were introduced into evidence at Peltier’s trial as part of the exhibit 34 series. One of these was the bullet casing found in the trunk of Agent Coler’s car; (Trial Ex. 34B). Hodge {FBI Laboratory firearms examiner} examined this bullet casing in December 1975 or January 1976. He was not able to reach either a positive or negative conclusion based upon a comparison of the firing pin impressions on Q# 2628 and the Wichita AR-15 exemplars, because he was not able to identify a sufficient number of characteristics in the firing pin impression left on the exemplars. The extractor marks on the exhibit 34 series and the Wichita AR-15 exemplars were due to their depth and roughness, however, and Hodge was able to conclude the extractor marks on the exhibit 34 series had been made by the Wichita AR-15 to the exclusion of all other weapons. The examinations of the firing pin impressions on the 114 casings did not produce any evidence inconsistent with the theory that the casings, and particularly the exhibit 34 series, had been fired from the Wichita AR-15. Hodge reported his findings with regard to the exhibit 34 series bullet casings in his January 13, 1976, and February 10, 1976 laboratory reports.”
And, “Due to a distinctive mark on the primer of those seven .223 casings, Hodge determined they had not been fired by the AR-15 recovered in Wichita, identified in the lab as K-40 (Trial Ex. 34A), thus accounting for the wording “contains different firing pin” in the teletype. At some time later during the course of his examinations, Agent Hodge compared the .223 casing from the trunk of Agent Coler’s car (Q# 2628, Trial Ex. 34B) and determined it had been loaded into and extracted from the Wichita AR-15.”
Peltier appealed again to the 8th Circuit.
In another detailed review the 8th Circuit (Judges’ Heaney, Ross and Gibson; written by Judge Heaney) made, among others, the following findings: [x]
“We affirmed the conviction on September 14, 1978…In affirming, we too accepted the government’s theory that both agents had been killed with a high-velocity small-caliber weapon fired at point-blank range at a time when the men were seriously wounded and unable to defend themselves. We then held that the evidence was sufficient for the jury to find Peltier responsible for the murders.”
“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.”
“Conclusion. 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 upon 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 the jury probably would have reached a different result. We have not been so convinced.”
In other words, Judges, Heaney, Ross and Gibson made their unanimous decision based on the Law.
Consequently, the October 2, 1975 FBI Laboratory Teletype was not ‘exculpatory evidence.’
AMY GODMAN: (Voice over from interviews of Leonard Peltier.) So, that was Leonard Peltier nine years ago in Prison from Florida. Judge Sharp, now Leonard Peltier’s lawyer, can you talk about the significance of what he said in these two conversations—and also, the first one, speaking to during Clinton, in fact, wasn’t President Clinton close to granting him clemency? And then under Obama, and what you hope will be different under President Biden?
4) KEVIN SHARP: Well, yes. Let me kind of take those in pieces. What Leonard said was accurate. Most of what he said, some of it was because he was there, so he’s got his own personal accounts, and some of it is backed up by documents turned over during the Freedom of Information Act, or, through a Freedom of Information Act request. We now know that the witnesses were intimidated. He’s absolutely right about that. We now know that exculpatory evidence showing that this was not his weapon that killed the agents—we now know that was hidden. We now know that Myrtle Poor Bear was forced to lie. We know that the young boys who were the young witnesses, eyewitnesses against him, recanted that testimony. It wasn’t true. So we know those things. Yet here we are 46 years later still talking about whether or not this man should be freed.
NPPA RESPONSE: Other points made by Mr. Sharp are reviewed elsewhere within this reply, however, just to address the comment regarding witnesses allegedly either being ‘forced to lie’ and recanting their testimony:
“However, upon further questioning at trial by the government attorney, they stated that the testimony they gave at trial was the truth, as they best remember it.”
“Brown, also stated that he lied to the grand jury. However, he affirmed, after his testimony regarding lying to the grand jury, that his testimony at trial was the truth.”
“The two witnesses testified outside the presence of the jury that after their testimony at trial, they had been threatened by Peltier himself that if they did not return to court and testify that their earlier testimony had been induced by F.B.I. threats, their lives would be in danger.” [xi]
(There are more court references regarding witness testimony.)
(Norman Brown) “They marched me in. This whole crowd of native people. As I was walking down the aisle there, I hear words spoken to me. ‘There’s that sell out. There’s that pig, there’s that little asshole,’ and you know, ‘That’s him. Hey asshole,’ like little whispers.” [xii]
American Indian Movement (AIM) witnesses, swore on the ‘sacred pipe’ which was accepted by the court in lieu of ‘swearing an oath on a bible’ to tell the truth under penalty of perjury. These witnesses, everything considered, would likely and ultimately return to the Reservation and be among their people, including AIM. It should not be surprising to Mr. Sharp, or anyone else, that they would publicly, out of court, recant any testimony. Clearly, they still had to survive.
5) KEVIN SHARP: The U.S. Attorney’s Office, the federal government, says, “We do not know who killed the agents.” They ended up—because of all the misconduct that was discovered in the trial, they changed their theory from one that he shot these agents to aiding and abetting. Well, then the question becomes: Who did he aid and abet? Because his co-defendants were acquitted based on self-defense. So, who did he aid and abet? When asked that question, the assistant U.S. attorney, in one sense, a flippant response was, “I don’t know. Maybe himself.” Well, that’s impossible. You cannot aid and abet yourself.
NPPA RESPONSE: Mr. Sharp broadly states that the quote “We do not know who killed the agents.” came from the “U.S. Attorney” but fails to identify the actual source; unless he is completely misguided and relied on two provably erroneous events.
As a matter of context, a review of the trial testimony and numerous appeals clearly established that the government’s argument at trial was that Leonard Peltier shot and killed the Agents. He was convicted of murder and aiding and abetting. This point is crystal clear.
During a hearing, AUSA Lynn Crooks made the following statement before the Court of Appeals, “we can’t prove who shot those agents.” (Peltier appealed claiming that the government changed its theory of his prosecution.) [xiii]
However, after a detailed review, the Court of Appeals concluded:
“It is impossible to conclude that, in all the circumstances, Crooks, who had participated in the trial of the case, intended by his unartfully phrased statement ‘we can’t prove who shot those agents,’ to abandon one of the two theories upon which the government had tried the case and upon which the case was submitted to the jury. More likely, he was merely reiterating that the government did not present any direct evidence that Peltier shot the agents at pointblank range, since all of the government’s proof was circumstantial.”
“Indeed, if Crooks’ statement were understood at the oral argument to be such a concession, one would have expected that, in his rebuttal argument, Peltier would have made the point that that statement changed the government’s basic theory of the case. His rebuttal, however, did not mention that statement. At oral argument in the present appeal, he conceded that he had not raised the point in his petition for certiorari seeking review of our affirmance of the denial of his prior section 2255 motion.”
“We agree with the district court’s statement in the present proceeding that ‘the government has never made admissions which changed its theory in this case.’ As the court stated:
“When the argument of government counsel before the Eighth Circuit is read in full, it is clear that the comment, “we can’t prove who shot those agents,” is taken out of context. The comment appears to relate to United States v. Kahl…a case involving the murder of federal marshals, not the murder of FBI Agents Coler and Williams in this case. The totality of the government’s argument to the Court of Appeals does not retract one bit from the government’s trial position that Peltier was at least guilty on an aiding and abetting theory, but that the evidence would support a finding that he was the executioner of the agents.”
In summation the Eighth Circuit concluded:
“Peltier’s arguments fail because their underlying premises are fatally flawed. (A) The Government tried the case on the alternative theories: it asserted that Peltier personally killed the agents, but that if he had not done so, then he was equally guilty of their murderer as an aider and abettor.”
So, the question at this juncture for Mr. Sharp is; what part of fatally flawed does he not understand?
However, there is another possible source that Mr. Sharp may have mistakenly used for the “we can’t prove who shot those agents” assertion, which would have been even less valid. That would have been to make any reference to the public statements of former U.S. Attorney, District of South Dakota, James H. Reynolds. [xiv]
Reynold’s incredibly and publicly said “We were not able to prove that Mr. Peltier personally committed any offense on the Pine Ridge Reservation.”
Given the history of the Peltier case, Reynolds’ claim is beyond irresponsibly bizarre as he also promoted the falsehood that the government later added-on the aiding and abetting charges: Another absurd claim that Mr. Sharp has offered as well (see below).
James H. Reynolds’ credibility is non-existent.
Mr. Sharp also raises an interesting conundrum—for him at least, stating rhetorically “You cannot aid and abet yourself.”
However, it is important to note that the 1993, 8th Circuit Court ‘fatally flawed’ decision has twenty-three (23) references to the concept and charge of aiding and abetting. It certainly wasn’t that this theory was ignored or bypassed. Part of the discourse related to the concept of proximity, and we certainly know that Peltier was not alone that tragic day.
Further, “The (trial) court gave the jury four instructions on aiding and abetting. Instruction Number 38 explained: ‘The burden is on the Government to prove beyond a reasonable doubt, not only that the offenses were committed as alleged in the indictment, but that the defendant was the person who committed them, or aided and abetted the person or persons who committed them.’”
The Peltier jury heard testimony, and had to give weight to the witnesses’ credibility, that after the initial unprovoked attack and wounding of the Agents, the three older AIM members, Peltier, Dino Butler and Bob Robideau went down to the Agent’s vehicles. That makes at least three at the crime scene. (Reviewing the sequence of events from that day, it is probable or at least possible, that others were at the Agent’s vehicles as well.) Specifically, Peltier, clearly places Joe Stuntz at the crime scene as he related to Peter Matthiessen:
“I seen Joe when he pulled it out of the trunk (Agent Coler’s FBI jacket) and I looked at him when he put it on, and he gave me a smile,” Leonard remembers. “I didn’t think nothing of it at the time; all I could think of was, we got to get out of here.” (In the Spirit of Crazy Horse, p.552)
Thanks to Peter Matthiessen (author of In the Spirit of Crazy Horse {ITSOCH}) directly quoting Peltier, we can clearly infer that there was more than just Peltier at the crime scene. The proximity of others to the dead agents made aiding and abetting a viable and real issue.
Mr. Sharp cannot jump ahead to Cedar Rapids in the Summer of 1976 for the Butler/Robideau trial and magically place Peltier—all by himself—at the Agents’ mutilated bodies.
Aiding and Abetting: In addition to the 1993, 8th Circuit decision reviewed above, (and there are other appellate references as well), there are several other key factors that make Mr. Sharp’s and James H. Reynolds claims of changing the prosecution theory, meaningless:
Peltier was indicted on November 17, 1975 for murder and Aiding and Abetting, warrants were issued based on those charges and within the Peltier trial transcript {4874 – 5164} the defense and prosecution discussed with Judge Benson, jury instructions on Aiding and Abetting and that it was also included in the government’s closing argument. Even Peltier’s FBI Wanted Poster, I.O. 4681, dated December 3, 1975. included the charges of Unlawful Fight to Avoid Prosecution (Peltier was a fugitive at the time from another mater), and an indictment for murder and Aiding and Abetting.
Any suggestion or even an inference, by anyone, that the government added the Aiding and Abetting charge later, or after the fact, beyond the trial and into the appellate process, is absurd on its face and fatally flawed!
6) KEVIN SHARP: The big misconception about this is that Leonard Peltier was convicted of shooting two agents. He was not. They had to drop that, because there was—the evidence that they had presented that he had shot two agents was false. It was perjury. It was manufactured. So they had to drop that case and come up with a new theory, and that theory was aiding and abetting. And when Leonard talked about not being able to put on his defense, one of the things that Judge Benson said was—when he excluded the evidence related to the misconduct in the reign of terror, was that the FBI is not on trial here. But once he did that, you have to put all of this in context. That’s why Judge Heaney, who was on the 8th Circuit, who heard this appeal—and although upheld the conviction, later came out himself in favor of commuting this sentence—said the federal government has to take responsibility for what happened here. And absolutely, they do. Context matters. But the lack of evidence that this man killed someone also matters. And so it’s time.
NPPA RESPONSE: Mr. Sharp is correct, context does matter, but claiming publicly about perjury, lack of evidence and new theories lacks credibility.
Even a later 2003 appellate court decision summed up the Peltier conviction quite well:
“Previous federal court decisions provided the (parole) Commission with ample facts to support its conviction that Peltier personally shot Agents Coler and Williams.” “Neither the conviction nor any of the subsequent court decisions have been overturned.” [xv]
Please refer to section #5 again.
By referencing and placing Judge Heaney’s actions in proper context it must be remembered that he never suggested Peltier was innocent. Quite the contrary his 1991 letter included:
“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 is a mitigating circumstance.” [xvi]
(By including the reference that “more than one person was involved,” Judge Heaney, perhaps inadvertently, supports the notion of ‘proximity’ regarding Aiding and Abetting.)
The proper context is that no matter how Judge Heaney personally felt, he made his decisions, all against Peltier’s interests, based on the LAW!
AMY GOODMAN: Judge Sharp, what did J. Edgar Hoover have to do with this case, the former head of the FBI at the time? (NPPA’s note to Amy Goodman: Not a thing. Hoover died in May 1972, three years before Agents Coler and Williams were murdered by Leonard Peltier.)
7) KEVIN SHARP: You know, that comes back into COINTELPRO, where there was a Division inside the FBI tasked with running counterintelligence against our own citizens. And they did that with respect to Martin Luther King, the student nonviolent movement, the Black Panthers and the American Indian Movement. If they considered them to be subversive, then they were running counterintelligence against them. And so, although Hoover was gone by 1975, we’re only one director removed from Hoover, and the tactics—if not a group within the FBI that had that name, the tactics still existed. And that was exactly what was happening. It’s very Vietnamesque.
NPPA RESPONSE: Actually, there were three post-Hoover FBI Directors (L. Patrick Gray, William Ruckelshaus and Clarence Kelly) during what many refer to as the Reign of Terror; the period between AIM’s 71-day siege and destruction of the hamlet of Wounded Knee in 1973, and the murder of Agents’ Coler and Williams in 1975. Nevertheless, this is irrelevant to the events of June 26, 1975.
The COINTELPRO program was faulty, history has demonstrated that. (Its methods were criticized, but the dead bodies of police officers and civilians, blown up buildings, and destruction left in the wake of these ‘organizations’ was very real.) However, the program officially ended in April 1971 and Mr. Sharp has to provide any proof that the program was engaged against Leonard Peltier and AIM members at Jumping Bull on June 26, 1975. (The challenge is offered for Mr. Sharp to produce any tangible evidence that connects COINTELPRO to Peltier and the AIM members for the unprovoked attack and murder of the Agents.)
No one, with any sense of history, would argue that life on Pine Ridge during that period was difficult and too often dangerous for the innocents caught in deadly clashes between the Full and Mixed-bloods and where groups like the Guardians of the Oglala Nation (GOONS) and the radical elements of AIM continued in violent conflict.
The FBI has statutory responsibility for investigating major crimes on Indian Reservations.
Peltier and others have made erroneous claims about the Reign of Terror that are not supported by the facts, for instance, the ’60 deaths’ (the number has varied over the years) during that period.[xvii]
What follows are key facts that Mr. Sharp has to address to lend any credence to his allegation that COINTELPRO had any relevance to the unprovoked attack and murder of the Agents:
Personnel, at the Rapid City Resident Agency, the local FBI office that covers Pine Ridge; the Minneapolis Field Office whose territory covers Minnesota, North and South Dakota; FBI headquarters in Washington, D.C., and most critically, FBI Agents’ Coler and Williams, did not know:
That the fugitive Leonard Peltier had recently arrived at Pine Ridge.
That an AIM camp had been set up along White Clay Creek adjacent to the Jumping Bull farm.
In other words, and factually, when Agents Coler and Williams, in their search for fugitive Jimmy Eagle, followed the red and white suburban onto the Jumping Bull farm, they were not aware of the presence of the fugitive Leonard Peltier or other AIM members in the AIM camp along White Clay Creek: They unknowingly drove into an unprovoked attack.[xviii]
Even Peter Matthiessen (ITSOCH), arguably one of the most informed authors concerning AIM history had very little to say about COINTELPRO, mentioning mostly tangential references with few specifics. He did though completely misrepresent the issue of the alleged FBI “Sanctioned Memo” (p.133) quoting that it “Presents orders from the U.S. Attorney General at the time of Wounded Knee that they were to ‘aim to wound, rather than kill.’” Matthiessen, previously the ultimate shill and Peltier apologist, took this statement completely out of context, failed to further quote the memo, and erroneously inferred it was connected to COINTELPRO.[xix]
* * *
STANDARDS WERE DIFFERENT
Judge Sharp states “…the standards were different. And if this case were brought up today, no question: This verdict gets overthrown.”
This statement must be challenged to solicit some explanation and proof from Judge Sharp.
1) Peltier was convicted for violation of Title 18, U.S.C. §2, Aiding and Abetting, §1111, Murder and §1114, Protection of Officers and employees of the United States.
The basic elements for the government to prove violations of these criminal code sections has not changed except in minor matters of phraseology. They are essentially the same when Peltier was convicted in 1977.
Judge Sharp, do you have anything to refute, or elaborate, on this point?
2) Judge Sharp, are you possibly suggesting that if you were defending Peltier, that you would be sharper than all of Peltier’s previous attorneys?
It is important to note that the appellate court concluded:
“Peltier was equally well-represented at trial and on appeal.” [xx]
A question to ask here is whether Judge Sharp is more capable than; Jennifer Harbury, John Lowe, Elliot Taikeff, Carl S. Nadler, Lawrence W. Shilling, Ramsey Clark, Lawrence Hildes, Michael E. Tigar, Arthur Kinoy, John J. Privitera, Mark B. Gombiner, Lewis Guritz, Cynthia K. Dunn, Martin Garbus, and longtime loyal pro bono attorney, Barry Bachrach, as well as others, with the notable exceptions of Bruce “I’ll take the Fifth” Ellison and Eric “Kill an FBI Agent” Seitz.[xxi]
However, Judge Sharp is likely as honest as one Peltier attorney, Michael Kuzma. Mr. Kuzma, during a November 3, 2012 radio interview officially put to rest the Peltier lie of Mr. X:
“From what I understand it’s now been determined that the Mr. X story was just concocted.” [xxii]
Judge Sharp, would you care to explain why an innocent man would lie for nearly two decades that someone else, someone they knew, first wounded, then murdered the Agents and drove off in the infamous red pickup? Peltier’s only alibi was a fraud, much like Peltier himself as he said in Redford’s Incident at Oglala “This story is true.” Well, it wasn’t, but a lie nonetheless that Redford bought into. Although, Matthiessen didn’t at first as he was “Taken aback by this unexpected story…” when he first heard the fable from Bob Robideau, with his “lidded ex-con look that reveals nothing.” “He gives the impression of bare honesty even when to protect others he is not telling the truth; that you suspect he may be lying does not bother him” (p.545-547). Nevertheless, in ITSOCH, Matthiessen ran with it anyway. Even the ‘60 Minutes’ segment aired a Mr. X interview but they at least were clever enough to add the caveat that they couldn’t vouch for it. In other words, they all knew it was a convicted felon’s fairytale.[xxiii]
3) “…knowing what everyone now knew.”
Judge Sharp, knowing everything we now know, and quite frankly what was known for a very long time, please consider the following regarding self-defense:
Peltier’s Big Lie
“—we AIM spirit-warriors weren’t about to sit quietly and wait to see just who was in those two unidentified cars that came roaring unannounced in a cloud of dust (actually, it had rained heavily the night before) and confusion and flying bullets into our compound that morning.” [xxiv]
To be absolutely clear, what Peltier is claiming is how the shooting began; he is stating, unequivocally, that the Agents came onto the property shooting; ’flying bullets.’ A provable Big Lie.
Eyewitness: Judge Sharp, please remember that there was an eyewitness to the unprovoked attack, and others who heard directly from that eyewitness. It is undisputed that as Coler and Williams stopped in that open field, Ron Williams was overheard on the FBI radio trying to describe their location and exactly what was about to happen: That the occupants of the vehicle they followed were getting out with rifles—the shooting began, and they could hear the gunfire—they heard Agent Williams painfully say “I’m hit” and that if they didn’t get there soon, they would be dead. Regretfully, help was too far away.
There is nothing, beyond Peltier’s Big Lie, that contradicts these facts.
Peltier trial testimony {1016-24}: On the afternoon prior to the murders, Wilford ‘Wish’ Draper, Michael Anderson and Norman Charles went into Oglala to take a shower. On their return, walking along Highway 18, they were stopped by two FBI Agents who questioned them about their identity and whether any of the three was the fugitive, Jimmy Eagle. They were taken to the BIA office in Pine Ridge, determined that none of the three was Eagle, and then dropped off near the Jumping Bull farm by a BIA officer. Peltier questioned them about the incident and yelled at them for going with the FBI.
The FBI Agents were, of course, Jack Coler and Ron Williams, both separately driving their Bureau vehicles. The three questioned, were present the following day when the attack on the agents occurred and could readily identify the Agents and their vehicles. Coler and Williams followed the red and white Chevrolet suburban, owned by Sam Loud Hawk but used by Peltier, from Highway 18, onto the Jumping Bull property. In the vehicle driven by Peltier, were Joe Stuntz and—Norman Charles.
Peltier claiming “those two unidentified cars” is an obvious lie for two reasons: Norman Charles had seen both Agents and their vehicles the day prior, and everyone living on the Reservation knew that white-men, in civilian clothes, driving late model sedans with additional antennas, were but one thing, the Feds. For example:
Further exposing Peltier’s lie, Angie Long Visitor, the granddaughter of the Jumping Bull family, who also resided on the farm, was a hostile yet credible witness to both the prosecution and defense and testified at Peltier’s trial: After hearing a “firecracker or something” she identified two late model vehicles with “aerials” along with the two occupants, as FBI Agents {2656 – 2676-77}. “I looked over and I seen them two FBI cars standing there” {2656}. At one point one of the Agents was in the “green car” and the other was “kneeling right beside his brown and white car” {2674}.
Although Long Visitor was a critical eyewitness, she did not see Peltier personally but identified the location of the vehicle he drove, Sam Loud Hawks red and white suburban, {2687} and the identity and location of others, including Bob Robideau, (who was wearing a ski mask in the summer), and was shooting at the Agents {2683 – 84}.[xxv]
Also, after all of Peter Matthiessen’s research and access to Peltier and the AIM hostiles, even he had to come to an inescapable conclusion about what the Agents faced, albeit with added speculation:
“On the other hand, the evidence suggests – to me at least – that Coler and Williams had indeed been chasing one or more vehicles, and that whether or not those being pursued stopped at the Y-fork above the junked cars (not wishing, apparently, to lead the FBI cars either down toward the camp or up into the compound), the agents pulled up in that vulnerable place down in the pasture because they heard a warning shot or came under fire; if there is another persuasive explanation of the location and position of their cars, I cannot find it.” (p. 544)
One additional and crucial detail was testimony during the February 2004 trial of Arlo Looking Cloud for the murder of AIM member, Anna Mae Aquash. During Peltier’s escape from Pine Ridge with other AIM members, he described Agent Williams final moments: KaMook Nichols, fighting back tears, testified “And he (Peltier) started talking about June 26, and he put his hands like this [gesture holding a gun] and started talking about the two FBI agents.” “He said the m…..f….. was begging for his life, but I shot him anyway.” [xxvi]
Considering the above provable facts, the acquittal of Butler and Robideau on the basis of
self-defense remains a travesty of justice.
4) The Trials: Darrelle Butler, Robert Robideau, Cedar Rapids, Iowa, 1976, before Judge McManus: Leonard Peltier, Fargo, North Dakota, 1977, before Judge Benson.
Judge McManus chose to allow testimony regarding the tension and atmosphere on Pine Ridge, the Reign of Terror as it was referred to, which essentially placed the Government on trial.
Judge Benson chose to try the case against Peltier as the singular criminal act that it was.
In either instance there was no substantive proof that the Reign of Terror, COINTELPRO or any other factor played into the criminal actions that took place on Jumping Bull that infamous morning. Peltier and the others knew full-well—and any claim to the contrary is meaningless—that the two men driving late model sedans were the FBI and that they did not drive in, shooting at anyone. With that, Peltier, knowing he was a fugitive at that moment, reacted with an unprovoked attack.
Unprovoked? Without question; because the evidence showed that Agent Williams was shot before he could even finish describing over the FBI radio what was about to happen; “I’m hit.”
With the volume of rifle fire they faced, the shooting and severely wounding of the Agents quickly rendered them defenseless. What little opportunity they had to return fire against their attackers was minimal, given the distance involved and with revolvers against multiple AIM attackers with rifles.
Unquestionably, evaluating the rapidly developing sequence of events, it was Agents’ Coler and Williams who were acting in self-defense.
And there is more.
At Cedar Rapids, the government was forced to trial while two key witnesses were magically unavailable. Those at the Wounded Knee Legal Defense/Offense Committee had a hand in making the two witnesses, Michael Anderson and Angie Long Visitor, unavailable for trial. They had to be tracked down in other States between trials. These were important witnesses who provided testimony about the actions in and around the Agents and their vehicles.
Given the defense advantage at Cedar Rapids, and the Government’s excessive burden of proof, the jury deliberated for five days and twice reported they were deadlocked; indicating that an acquittal was not a forgone conclusion.
Placing Judge McManus’s other rulings aside, there was one event that undisputedly created a significant advantage for the defense to the detriment of the prosecution. Perhaps, for some not too inexplicable reason, when the Government rested its case, Judge McManus called a ten-day recess to attend a judicial conference!
Judge Sharp, when you were on the federal bench would you have even considered taking such action during a murder trial, or any trial for that matter? It’s likely the answer would be no.
Nevertheless, we can debate the judicial approach and trial rulings each judge took in the respective trials, but ultimately, we have to live with the juries’ verdicts. Knowing, as we do now, and without any uncertainty, there was no further review of the Cedar Rapids trial. However, there were over a dozen detailed appellate reviews of the Fargo trial, and none affected Peltier’s conviction or sentence.
The standards are not different today: If Peltier was retried, he would be convicted again.
Judge Sharp, this isn’t about vengeance or retribution, only about the truth, based on the actual facts and court record. It is hoped that challenging your Democracy Now interview, that conflicts with the appellate history of Peltier‘s conviction, and knowing what we now know about Peltier’s criminal acts, unrepentant claims of innocence and provable falsehoods and lies, that you may reconsider and correct your public statements.[xxvii]
“In the Spirit of Coler and Williams”
Ed Woods
[i] Judge Sharp has demonstrated that he is an honorable and decent human being. His decision to leave the federal bench and ultimately correct the sentencing of Chris Young, is surely admirable. The video story: https://www.youtube.com/watch?v=_4x7t_o6Uz0
[ii] On April 3, 2000 there was a chance meeting with Jack Coler’s youngest son, who was but one and a half when his father was murdered. His older brother was three. That led to a simple Internet search that uncovered a volume of information, a principal website and many Internet references concerning Native American, political prisoner, Leonard Peltier. Downloading and reviewing the entire Peltier website painted a stark picture of Peltier’s conviction. The then Leonard Peltier Defense Committee (LPDC) encouraged reading the book, In the Spirit of Crazy Horse, by Peter Matthiessen, watching the film, (they called it a ‘documentary’ but it was actually a screenplay of Matthiessen’s book), Incident at Oglala, produced and narrative by Robert Redford. Added to this review was Peltier’s autobiography, Prison Writings. After reading all this material, even given some of their own contradictions, there was an honest reflection and a question; Was the case against Peltier that bad? Further research, starting with the FBI’s website page entitled RESMURS (the case name for the investigation, Reservation Murders), and securing the many court decisions and the trial transcript, an entirely different picture of the Peltier case emerged. The Peltier myth, folklore, fabrications, lies and contradictions from their own public material was striking. It was clearly evident that each and every claim of Peltier’s alleged wrongful conviction had been painstakingly examined by the courts and resolved or ultimately dismissed, none in his favor.
[iii] 1992, 60 Minutes segment; Interviewer, Steve Kroft: https://www.youtube.com/watch?v=TYwdh7DGEsw (last accessed 2/4/2022)
[iv] Canadian conclusion regarding Peltier’s extradition: http://www.noparolepeltier.com/canadaletter.html
[v] The Judge Gerald Heaney factor: http://wwwnoparolepeltiercom-justice.blogspot.com/2017/10/peltier-heaney-factor.html
[vi] It is well known by law enforcement that criminals, when they are able, will retrieve spent shell casings to prevent ballistic matches between shell casings and the weapons that fired them. At the Jumping Bull crime scene, where three shots were fired into the faces of Agents Coler and Williams, only one .223 shell casing was recovered; from the trunk of Agent Coler’s vehicle. The other two were likely retrieved by Peltier or others at the crime scene.
[vii] Eighth Circuit Court of Appeals decision regarding United States v. Bagley:
http://www.noparolepeltier.com/800.html Quoting, uncontested, from the government’s brief.
[viii] Eighth Circuit Court of Appeals remands to the District Court for an evidentiary hearing:
[ix] October 1-3, 1984, evidentiary hearing decision: http://www.noparolepeltier.com/609.html
[x] Eighth Circuit Court of Appeals decision regarding ballistics evidence and United States v. Bagley:
[xi] Peltier, Direct Appeal: http://www.noparolepeltier.com/585.html
[xii] Arts & Entertainment, A&E television documentary; Murder on a Reservation, October 17, 2000. Transcribed quote.
[xiii] Eighth Circuit Court of Appeals, “Fatally Flawed” decision, 1993, http://www.noparolepeltier.com/997.html
[xiv] James H. Reynolds references:
http://wwwnoparolepeltiercom-justice.blogspot.com 1/20/2022 Part IV; Pres. Biden
http://wwwnoparolepeltiercom-justice.blogspot.com/2021/06/ 1/26/11 & James Reynolds
http://wwwnoparolepeltiercom-justice.blogspot.com/2018/01/peltier-james-reynolds-part-iii-dancing.html 1/1/18, Part III Reynolds; Dancing on graves
http://wwwnoparolepeltiercom-justice.blogspot.com/2017/12/james-reynolds-part-ii-letters-public.html 12/2/17, Part II The letters and public statements
http://wwwnoparolepeltiercom-justice.blogspot.com/2017/01/peltier-reynolds-false-claims.html 1/5/17, Part 1; Reynolds false claims
[xv] http://www.noparolepeltier.com/tenth_circuit.html Tenth Circuit Court of Appeals, “Neither the conviction…”
[xvi] Judge Gerald W. Heaney, April 18, 1991 letter: http://www.noparolepeltier.com/heaney.html
[xvii] http://www.noparolepeltier.com/response.html#7 See section: Issue, “Reign of Terror” and Indian murders never investigated.
[xviii] ‘The old cowboy boots story: For many years Peltier and his various committees claimed that the killing of the Agents began with the theft of a pair of old cowboy boots. See http://www.noparolepeltier.com/faq.html#17 for a review of this incident and the later 2005 update and interview of one of the victims.
[xix] The alleged “Sanctioned Memo” http://www.noparolepeltier.com/debate.html#critic and the explanation of how and why Peltier deliberately misrepresents this FBI document.
[xx] “We have carefully examined the record in the trial court and on appeal, and have concluded that the defendant’s trial counsel were aggressive, capable, and informed, and engaged in sophisticated trial decisions on strategy.” “Peltier was equally well-represented at trial and on appeal.”
(Eighth Circuit Court of Appeals, September 14, 1978) http://www.noparolepeltier.com/585.html
[xxi] Mr. Sharp is certainly more capable than Peltier apologist, Bruce Ellison, aka Bruce “I’ll take the Fifth” Ellison: Ellison was described in open court by the U.S. Attorney’s office during a 2004 trial as “He is a co-conspirator.” Ellison had ‘taken the Fifth’ “on a number of occasions” before a Grand Jury. This was as a result of the prosecution of Arlo Looking Cloud for the murder of Anna May Aquash and Ellison’s involvement with the Wounded Knee Legal Defense/Offense Committee, and their Rapid City office. Testimony disclosed that Ellison was present during Anna Mae’s interrogation at the WKLDOC office; the last place where Anna Mae was known to be seen alive. The Assistant U.S. Attorney further added “He (Ellison) is a co-conspirator, it is a co-conspirator’s statement made in the furtherance and course of the conspiracy.” http://wwwnoparolepeltiercom-justice.blogspot.com/2016/02/peltier-bruce-ellison-esq-co.html
And, Peltier attorney, Eric Seitz, who publicly came out with this gem after Peltier’s June 28, 2009 parole hearing at Lewisburg Penitentiary “…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.” (Yes, Peltier’s lawyer actually said that.)
[xxii] Peltier attorney Michael Kuzma admits the lie of Mr. X:
http://wwwnoparolepeltiercom-justice.blogspot.com/2012/12/peltier-kuzma-closes-circle-much-more.html
[xxiii] Part 3, Mr. X The Lie (preceded by Mr. X The Interview and Mr. X The Movie) http://www.noparolepeltier.com/lie.html
[xxiv] Leonard Peltier, Prison Writings (New York, St. Martin’s Press, 1999) 114
Peltier autobiography. See also http://www.noparolepeltier.com/debate.html#amazon
[xxv] Editorial Essay; Critical Witness against Peltier; Trial transcript review; Michael Anderson, Wilford “Wish” Draper, Noman Brown, Angie Long Visitor: http://www.noparolepeltier.com/debate.html#critical, and Peltier trial transcript witness testimony.
[xxvi] Joseph H. Trimbach, American Indian Mafia, (Denver, Outskirts Press, Inc., 2008) 451-452. Excerpt of transcript from Arlo Looking Cloud trial. (The autopsy of Agent Williams determined that he had a defensive wound, indicating that the muzzle of the Wichita AR-15 was placed against a raised hand, fired, blowing Agent Williams’ fingers through the back of his head.)
[xxvii] During a CBS interview on February 6, 2022, Mr. Sharp essentially repeated the same misstatements as he had during the Democracy Now interview. There is no need to repeat Mr. Sharp’s inaccuracies as challenged above.
