SHARP’S DISINFORMATION…#2
Constitutional Violation
Dear supporters:
The answer for Mr. Sharp is: No, I do not agree.
Sharp is only grasping at straws and agitating Peltier supporters with agenda-driven, tired and shallow claims. He is trying to blow life into arguments that have long since died of natural causes.
Continuing with the February 15, 2023 Native America Calling podcast (see previous Blog dated 3/11/23 http://wwwnoparolepeltiercom-justice.blogspot.com)
when Peltier attorney Kevin Sharp made the following public statement in response to a comment by Ed Woods regarding Constitutional violations:
KEVIN SHARP: “There was a sixth Amendment violation to a fair and impartial jury, when one of the jurors admitted she was prejudiced against Indians. Those were her words. And she admitted it. Now that is a violation of the Sixth Amendment right to a fair and impartial jury. So, I think Mr. Woods will have to agree with me that if we start there, let’s have a new trial, and today that would get you a new trial. Problem was that Leonard’s attorneys didn’t appeal that. And, at that time you could waive the issue, you can’t waive that issue today. It’s just ineffective assistance of counsel and that issue alone gets you a new trial.”
Kevin Sharp offers a premise that would not survive a court challenge.
Brief background: (Note: The trial transcript of this juror issue is available here.[i] Readers are strongly encouraged to review the entire document.)
On the first day of Peltier’s trial in Fargo, North Dakota, during a break in the proceedings, Chief U.S. District Court Judge Benson, on the record, advised the federal prosecutors and Peltier’s two defense attorneys (Peltier was physically present during all these proceedings) that his office had been contacted by an individual who claimed that one of the jurors, Shirley Klocke, made a statement disparaging Native Americans. Judge Benson had his clerk secure an affidavit from the complainant and provided it to the attorneys and Peltier. At the close of that day’s testimony there was a lengthy discussion. The person who submitted the affidavit, along with two other witnesses who overheard the juror’s comment during a coffee break where they all worked, appeared voluntarily in the Judge’s chambers. Individually, there was a voir dire (questioning) of the three women by Judge Benson, Peltier’s attorneys (Taikeff and Lowe) and the prosecutors (U.S. Attorney Hultman and Assistant U.S. Attorney Crooks). They also voir dired the juror, Mrs. Klocke. There was further discussion between the lawyers and Judge Benson, each offering their opinion as to whether Mrs. Klocke should remain on the jury. That discussion ended with Judge Benson directing both sides to take the evening to consider the matter.
It is more than apparent that Peltier attorneys, Taikeff and Lowe, discussed the issue with Peltier, and as well, his three other attorney investigators, and there was obviously further discussion with the prosecutors. The following morning the result was that the government joined the defense motion to allow the juror to remain. Judge Benson accepted the motion for the record and the trial continued with Mrs. Klocke remaining on the jury.
A flawed allegation:
What follows are the reasons why Kevin Sharp’s allegation of a wrongful conviction, based on the Sixth Amendment lacks merit, beginning with an appropriate observation; “The allegation of Peltier’s counsel on appeal amounts to no more than hindsight and second-guessing by one lawyer concerning trial tactics used by another lawyer. Peltier was equally well-represented at trial and on appeal.” 8th Circuit, 9/14/78. Sharp is just another second-guesser.
Peltier’s appellate attorneys reviewed the trial record and came to an apparent conclusion that neither the Sixth Amendment nor ineffective assistance of counsel were appealable issues or even rising to harmless error by the court. Considering how thoroughly this juror issue was resolved, they surely recognized these two issues.
The chambers’ record is crystal clear that the prosecutors and defense lawyers, with Leonard Peltier present the entire time, witnessed the voir dire of the three witnesses and Mrs. Klocke. They were each privy to, and involved in, the questioning of these four women and especially Mrs. Klocke’s demeanor, responsiveness, candor, and body language. In other words, did she appear to be honest with her replies?
They were all there, witnessing it for themselves. Kevin Sharp was not.
It is important to note here that it was the government and the court that had reservations about keeping this juror, out of concern that it could have a chilling and adverse effect regarding her attitude toward the government’s case:
AUSA Crooks stated, “I think it was pointed out with Mr. Hultman, this experience of coming in here may have adverse consequences to the United States and we are not really prepared to say whether or not we might not at this point want to challenge this juror.”
Judge Benson offered, “I have some concerns in my own mind about this juror.”
Peltier’s attorney Lowe summarized the situation and Constitutional considerations:
“…. And we feel he has a constitutional right not to have that juror removed without his motion in a situation that could lead to a constitutional detriment. We’re not just waiving the fact, we’re objecting to people with prejudice during the voir dire and now we say we want to keep the juror. There are different factors that play.”
The following morning in court:
U.S. Attorney Hultman, “There is one other matter…that the Government would like to put on the record at this time is the fact that we join in the motion that the defendant made late yesterday afternoon.” (Emphasis added.)
Judge Benson acknowledged, “The Court will then proceed pursuant to the agreement of counsel on that matter.”
As did Peltier attorney Taikeff, “Yes, Your Honor.”
What Sharp needs to recognize is the result of trial strategy. Peltier, his two attorneys, and undoubtedly discussions with Peltier’s other three attorneys, carefully considered Mrs. Klocke’s responses. They must also have considered that both the government and the court had their own doubts. Peltier and his five attorneys surely smelled blood in the water, and for the very reasons of government concern, felt that Mrs. Klocke may just as likely react to her experience in the Judge’s chambers, as detrimental to the government, but beneficial for the defense. They made a tactical and strategic decision after certainly serious consideration with their client.
As for Peltier’s Direct Appeal, the record noticeably reflects the obvious:
“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.” 8th Circuit, 9/14/78.
Of course, these are the same Peltier-related judges that Sharp publicly slandered by inferring that their actions were corrupt. In Sharp’s mind their studied conclusions do not measure up to his imagined standards.[ii]
Sharp’s word-salad conclusion: “Problem was that Leonard’s attorneys didn’t appeal that. And, at that time you could waive the issue, you can’t waive that issue today. It’s just ineffective assistance of counsel and that issue alone gets you a new trial.”
This leads to an obvious challenge; if Sharp really believes this, then he should move forward and file something, anything; step up and put his name on it. He needs to stop the pandering and act on his derisive instincts. But that hasn’t happened, and never will. Sharp has to be creative because the facts are elsewhere.
Sharp makes claims of constitutional violations but has quoted no legal references or citations, only a broad-brush stroke with a Sixth Amendment broom, searching in a desperate struggle to find any basis, no matter how irrational or misleading, to engender support for his double-murder client.
More to follow.
“In the Spirit of Coler and Williams”
Ed Woods
[i] The entire relevant trial transcript is available at http://wwwnoparolepeltiercom-justice.blogspot.com and also at the following: Volume II, Morning Session, Thursday, March 17, 1977, https://www.whoisleonardpeltier.info/LEGAL/VOL02.htm, Sections {118} to beyond {299}, and Volume III, Morning Session, Friday March 18, 1977, https://www.whoisleonardpeltier.info/LEGAL/VOL03.htm, between Sections {303} and {304}.
[ii] Kevin H. Sharp, 2/15/2023: “There were evidentiary rulings that appear to be, from someone who made a lot of evidentiary rulings from the federal bench (referring to his own six years as a federal judge), slanted so that the prosecutor got the upper edge.” Sharp does not qualify this public statement. He is stating that the judges’ decisions were deliberately made to favor the government over Peltier’s interests. There is no other way to interpret or lessen his traduced plain language; “slanted so that the prosecutors got the upper edge.”
