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.
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:
