Imprisoned in the U.S. for his beliefs

Peltier Legal Update Jan 28 '05

author: "The Peltier Legal Team" WillowElderGrove@netscape.net
LEONARD'S LEGAL TREK THROUGH 2004
by Barry Bachrach, Esq.

In 2004, Leonard Peltier's legal team pursued several legal
avenues - in Washington, DC, New York, and North Dakota -
that could result in our ultimate goal: Leonard's freedom. =============================================
MOTION TO CORRECT ILLEGAL SENTENCE
=============================================

Leonard filed an action in the United States District Court for the
Eastern District of North Dakota challenging his illegal sentence
and seeking his immediate release. The statutes under which
Leonard was charged (18 U.S.C. §§ 2, 1111 and 1114) required
that the acts in question take place "within the special maritime
and territorial jurisdiction of the United States". The shootout
occurred on the Pine Ridge Indian Reservation, neither "within
the special maritime [or] territorial jurisdiction of the United
States." So Leonard was simply convicted and sentenced for
crimes over which the federal courts had no jurisdiction.

Not only did the court lack jurisdiction in Leonard's case, but the
trial judge inflicted punishment - two consecutive life terms -
that the jury's verdict alone did not allow. The jury did not find
all the facts "which the law makes essential to the punishment".
According to a recent U.S. Supreme Court decision, the judge
exceeded his proper authority. See Blakely v. Washington, 124
S.Ct. 2531 ( 2004).

No hearing date has yet been set, but we hope to have this case
heard sometime in January 2005.

Needless to say, Leonard is very optimistic about this case and is
calling on all of us to support this suit with the fervor it deserves.

=============================================
CHALLENGE TO CONTINUED ILLEGAL CONDUCT
BY THE PAROLE COMMISSION
=============================================

In September of 2004, Leonard joined with Yorie Von Kahl
(another political prisoner who has suffered over 20 years of
unjust incarceration in a lawsuit filed in Washington, DC,
claiming that officials of the U.S. Department of Justice, U.S.
Parole Commission, and the Bureau of Prisons knowingly
violated the Sentencing Reform Act (SRA) of 1984 (and its
amendments) and illegally extended Leonard's and Yorie's prison
terms for over a decade.

The SRA was passed to address what congress thought were
inconsistent sentences imposed by different judges on different
Individuals convicted of the same crimes, as well as arbitrary
parole decisions. A new system - one of determinate sentences
- was born and the parole commission was abolished.

At the heart of the suit is the government's refusal to enforce
Title II, Chapter II, Section 235(b)(3) of the Sentencing Reform
Act. Effective on October 12, 1984, this part of the law ordered
that parole dates "consistent with the applicable parole
guideline" be issued to all "old system" prisoners within the
following five-year period, at the end of which time (on October
11, 1989) the parole commission would cease to exist.

Over three years later, on December 7, 1987, Congress amended
Section 235(b)(3) by repealing the release criteria and restoring
the criteria under 18 U.S.C. 4206. Significantly, Congress
expressly provided: "The amendments made by this Act shall
apply with respect to offenses committed after the enactment of
this Act" (Public Law 100-82, §26). The Amendment did not
resurrect the Commission which, according to the terms of the
original Section 235(b)(3), expired as of midnight on October
11, 1989.

Lacking any statutory authority and ignoring the express
mandate of the U.S. Congress under the original section
235(b)(3) and the 1987 amendment, the parole commission
illegally extended the terms of imprisonment of both men.
Leonard and Yorie should have been given their release dates by
October 11, 1989, minus sufficient time to exhaust appeals. Had
the Parole Commission complied with existing law, both men
would have been released over 12 years ago.

The failure of the Parole Commission to give release dates to
Peltier and Kahl violated the express statutory language of
Congress and the ex post facto, Bill of Attainder, and Due
Process clauses of the U.S. Constitution. Leonard and Yorie have
demanded a permanent injunction preventing further
misapplication of the SRA and its amendments by the
government; enforcement of the rights created by the original
Section 235(b)(3); and compensatory and punitive damages as
determined by a jury because of the irreparable injuries they
have suffered.

Applying form over substance, the lower court ordered the case
be transferred to the District of Kansas. Because the case was
properly filed in the District of Columbia, Leonard and Yorie
immediately filed a petition for a Writ of Mandamus with the
U.S. Court of Appeals for the District of Columbia. This
procedural issue will be decided soon and the merits of the case
hopefully will be addressed in the District of Columbia. This
civil complaint is supported by a strong legal position which
could lead to the release of Leonard and Yorie who look forward
to the court's consideration of the substantive merits.

=============================================
WITHHELD DOCUMENTS
=============================================

Led by Attorney Michael Kuzma, the Peltier legal team is
feverishly pursuing over 140,000 documents which the
government has still failed to hand over to us.

At the time of Leonard's trial in 1977, the government turned
over roughly 3,500 pages of material to his attorneys, claiming
that this was the extent of the material in its files on the shooting
deaths of two agents of the Federal Bureau of Investigation (FBI)
on June 26, 1975.

In the early 1980s, after Leonard was tried and convicted, the
legal team submitted a request to the FBI under the Freedom of
Information Act (FOIA). In theory, FOIA is a law that is
designed to ensure public access to records maintained by the
federal government. As a result of this request, it was
discovered that the FBI actually maintained 18,000 pages related
to Leonard's case, documents which should have been originally
produced. Even then, only twelve thousand (12,000) pages were
released in full or in part. It was only when these documents
were produced post-trial did Leonard's legal team discover that
the government intentionally withheld exculpatory ballistics
evidence which undercut the fabricated evidence offered by the
government at trial.

In 2001, the legal team sent a new round of requests to every FBI
Field Office in the U.S. By virtue of these FOIA requests and
several subsequent federal lawsuits, it has been discovered that
the FBI actually has 142,579 pages of material that have never
been made available to Leonard or his attorneys. The
Minneapolis Field Office alone has 90,000 pages. The data
maintained by this FBI Field Office is particularly important
because it was the Office of Origin for Leonard's case.

A FOIA request made to the FBI Field Office in Manhattan
(New York) on November 1, 2002, has revealed that its file on
Leonard Peltier is allegedly missing. Correspondence from the
FBI claims that the so-called "missing" file is on "special locate".
Nearly two years later, this file has yet to be located by the FBI.
The "missing" Manhattan file is of particular significance
because a number of Peltier's attorneys including William M.
Kunstler, Elliot A. Taikeff, and Ramsey Clark were based in
Manhattan.

Currently, there is a FOIA lawsuit pending in the U.S. District
Court for the Western District of New York. Of 812 pages, the
FBI Field Office in Buffalo has released 797 pages in full or in
part. Fifteen pages are being withheld in their entirety. This
suit is extremely important because some documents already
released strongly infer that an informant infiltrated Leonard's
legal team before and during trial.

The majority of the sought-after documents in the Buffalo case
are over 25 years old. Documents are supposed to be
automatically declassified after 25 years under Executive Order
12958. The FBI is arguing, however, that this material should
not be subject to automatic declassification because it could
cause serious damage to national security and the so-called war
on "transnational terrorism". The FBI also contends that release
of the data could have a chilling effect on the free flow of
intelligence information and strain diplomatic relations between
the United States and a foreign government.

On August 11, 2004, the Leonard's attorneys filed a
Memorandum of Law in Opposition to the government's Motion
for Summary Judgment in the Buffalo case. A hearing was held
on this matter in September of 2004. We are still awaiting a
decision on these important documents.

We will continue pushing for production of the over 140,000
documents still being withheld by the government.

=============================================
YEAR 2005
=============================================

We anticipate that many of the issues discussed above will be
resolved in 2005. The legal team also is planning several other
future actions which we cannot discuss due to confidentiality
issues.

In 2005, we must work together to increase public awareness of
Leonard's plight. We urge each of you to educate at least 25
new people about Leonard's situation and urge others to take
action. Do it and keep doing it until our complacent society
demands Leonard's freedom. Remember that what has
happened to Leonard can happen to any one of us. In the
political environment in which we now live, any one of us could
find ourselves in Leonard's Kafkesque world.

Leonard's freedom depends on all of us taking an active roll in
securing his release. More than ever before we must join
together and, as Harvey Arden and Peter Matthiessen have
urged, show the government that we will not go away. Let us all
commit ourselves to work together - selflessly and tirelessly - to
make Leonard's freedom a reality in 2005.

=============================================

End Note: The cases of Leonard and Yorie are strikingly
similar. They were tried by the same judge (Paul Benson) and
the same federal prosecutor, i.e., Lynn Crooks. While Leonard
and Yorie have different political views, they agree that the U.S.
government does target activists and attempts to "neutralize"
activist groups. Their respective cases show that federal law
enforcement agencies, which are charged by law with
investigating crimes and preventing criminal conduct, have
themselves engaged in lawless tactics, including fabricating
evidence, and fomented violence and unrest. Their respective
cases also show that federal prosecutors have aggressively
supported these actions and played an important role in the
wrongful conviction of both men. To learn more about Yorie's
case, we suggest the book written by Yorie, "A Writ of Habeas
Corpus: Documenting the Cause of the Federal Assault on
Gordon Kahl at Medina, ND," and his website at
http://www.yorievonkahl.com/.

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