Latest / Wrongful Conviction / #529 The Wrongful Conviction of Leonard Peltier - Part 3

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#529 The Wrongful Conviction of Leonard Peltier - Part 3 · Wrongful Conviction

0:02
Speaker 1: Previously on our coverage of the wrongful conviction of Leonard Peltier,
0:06
Speaker 1: Federal prosecutors used false evidence to extradite Leonard Peltier from
0:10
Speaker 1: Canada to the United States, where his code efendants had
0:14
Speaker 1: just been acquitted on the grounds of self defense for
0:17
Speaker 1: the June nineteen seventy five fatal shooting deaths of two
0:21
Speaker 1: FBI agents on the Pine Ridge Reservation. So in preparation
0:27
Speaker 1: for Leonard's trial, they traded a premeditated ambush narrative for
0:32
Speaker 1: one claiming that after the agents pursued Leonard onto Jumping
0:35
Speaker 1: Bull Ranch to serve a warrant, a firefight had ensued,
0:39
Speaker 1: and when the agents were wounded, the beds claimed that
0:42
Speaker 1: Leonard approached them with an AR fifteen, which ejected a
0:46
Speaker 1: shell casing into the agent's trunk as he executed them
0:50
Speaker 1: in cold blood, but hidden evidence said otherwise, this is
0:56
Speaker 1: wrongful conviction. You're listening to Wrongful Conviction. You can listen
1:04
Speaker 1: to this and all the Lava for Good podcasts one
1:07
Speaker 1: week early and ad free by subscribing to Lava for
1:10
Speaker 1: Good Plus on Apple Podcasts. Welcome back to Wrongful Conviction
1:22
Speaker 1: for the final episode in our coverage of Leonard Peltier,
1:26
Speaker 1: where once again I'm joined by you know him and
1:30
Speaker 1: you love him, Ben Bolin from the podcast Stuff They
1:33
Speaker 1: Don't Want You to Know.
1:33
Speaker 2: Thank you, Jason. We'll pick up on this story where
1:36
Speaker 2: we left off when the federal prosecutors have been granted
1:39
Speaker 2: a change of venue from Cedar Rapids, Iowa to Fargo,
1:43
Speaker 2: North Dakota, where Judge Paul Benson cited mental incompetence when
1:48
Speaker 2: Barry Myrtle Poor Bear from testifying about how FBI agents
1:52
Speaker 2: coerced her into swearing falsely in three affidavits to obtain
1:57
Speaker 2: Leonard's extradition from Canada.
2:00
Speaker 1: It certainly looks like she was just of no use
2:03
Speaker 1: to them anymore for the purposes of Leonard's trial in
2:06
Speaker 1: March nineteen seventy seven, where the Beds once again were
2:09
Speaker 1: up to their same dirty tricks trying to influence the jury.
2:13
Speaker 3: Because the jurors were sequestered during Lennon's trial for their
2:16
Speaker 3: own safety, they were under twenty four hour US Marshall protection.
2:21
Speaker 3: And what we didn't know was that they were transported
2:23
Speaker 3: to the courtroom from their hotel, back to their hotel
2:26
Speaker 3: for lunch, et cetera, back and forth the end of
2:28
Speaker 3: the day, and the windows of this bus were taped
2:31
Speaker 3: up because they were told that this would prevent them
2:33
Speaker 3: from being.
2:34
Speaker 4: Shot at by snipers. Wow, and there were sniper teams
2:37
Speaker 4: very visible on the roof.
2:39
Speaker 2: Those snipers were FBI agents, but the alleged threat was
2:44
Speaker 2: from AIM and their supporters.
2:46
Speaker 3: The way the jurors came out of the building, the
2:49
Speaker 3: bus was parked about fifteen feet from the entrance. The
2:52
Speaker 3: door bursts open, a team of marshalls come and fan out,
2:56
Speaker 3: and then they ushered these jurors in fast as they
2:58
Speaker 3: can so they don't get shot between the building and
3:01
Speaker 3: the bus. You do this four times a day for
3:04
Speaker 3: six weeks, even have an impression.
3:06
Speaker 2: That's like psychological warfare.
3:08
Speaker 3: It was all about creating a climate of fear and terror.
3:12
Speaker 3: They did it in the courtroom. We had twenty five
3:15
Speaker 3: marshalls in the courtroom at all times. He had agents
3:17
Speaker 3: sitting behind us with submachine guns and cases.
3:20
Speaker 1: In addition to the terror tactics, the prosecution team of
3:24
Speaker 1: Lynn Crooks, Evan Holtman and Robert Sikma were able to
3:27
Speaker 1: take the self defense claim off the table with the
3:30
Speaker 1: execution narrative, which in turn barred witness testimony about the
3:34
Speaker 1: Goon Squad's betterally funded terror campaign that made self defense
3:38
Speaker 1: in gun battle the norm on Pine Ridge. And now
3:41
Speaker 1: but Jimmy Eagle also out of the picture. They needed
3:43
Speaker 1: witnesses to place Leonard in the car allegedly being chased
3:48
Speaker 1: by the agents.
3:49
Speaker 3: And suddenly a young man, Michael Anderson, who is fifteen
3:52
Speaker 3: years old at the time, in every statement he had
3:55
Speaker 3: given previously said he was in the camp when the
3:58
Speaker 3: firefight started, suddenly was quarter mile away and on the
4:02
Speaker 3: roof of one of the houses and watched a vehicle
4:05
Speaker 3: drive in, chased by the two agents. And it wasn't
4:08
Speaker 3: a red pickup like the agents described, but it was
4:11
Speaker 3: a red and white van like they found up in
4:14
Speaker 3: the camp and had been seen up by the houses
4:17
Speaker 3: at one point. So Mike's telling the story and he
4:20
Speaker 3: describes it as the agents following an orange pickup. And
4:23
Speaker 3: the prosecutor says, now, when you say orange pickup, do
4:26
Speaker 3: you mean a red and white van?
4:28
Speaker 2: And he said yes, that day the agents had clearly
4:31
Speaker 2: radioed in describing a red pickup like the one that
4:35
Speaker 2: Jimmy Eagle drove. But since the charges against Jimmy had
4:39
Speaker 2: been dropped the narrative became Leonard in his red and
4:43
Speaker 2: white van. Anderson also said that he'd come running back
4:46
Speaker 2: to the campground to grab a rifle and saw Leonard
4:50
Speaker 2: with an AR fifteen. On cross examination, Mike Anderson admitted
4:55
Speaker 2: that his charges relating to the exploding car in Wichita
4:58
Speaker 2: were dropped in a exchange for this testimony. In a
5:02
Speaker 2: similar vein Wilford, Draper admitted that he'd been threatened with
5:05
Speaker 2: indictment for the murder himself, so he agreed to testify
5:10
Speaker 2: that the group had knowledge of the FBI agent's cars
5:13
Speaker 2: on the day prior and that he had seen Leonard
5:16
Speaker 2: with an AR fifteen. Norman Brown flat out refused to
5:20
Speaker 2: repeat his testimony from the Butler Robadu trial that he'd
5:23
Speaker 2: seen the Trio near the agent's car. He said, quote,
5:27
Speaker 2: it was the agents who said that I saw them
5:30
Speaker 2: end quote, and he added that he too have been
5:33
Speaker 2: threatened with the indictment.
5:35
Speaker 5: Yes, the witnesses testified that their family was threatened, their
5:39
Speaker 5: mothers are threatened, and they were threatened of course, and
5:43
Speaker 5: tried to rechat any kind of statement that they were
5:46
Speaker 5: forced to make before. So it was no evidence. Nobody
5:50
Speaker 5: said I was shooting at anybody or killing anybody.
5:54
Speaker 1: No one witnessed anyone allegedly performing this execution on these
5:59
Speaker 1: two agents. And the medical evidence was that the agents
6:02
Speaker 1: were shot by a high velocity rifle at close range,
6:06
Speaker 1: and that Agent Williams had a defensive wound on his
6:09
Speaker 1: right hand, and that the gun must have been pressed
6:12
Speaker 1: against it before firing through his hand and his head.
6:15
Speaker 1: But strangely, there was no mention whatsoever of the burn
6:19
Speaker 1: wounds that are associated with close range gunshots. I'm gonna
6:23
Speaker 1: pause on that for a second. And both bodies, by
6:26
Speaker 1: the way, were discovered face down, which does not fit
6:29
Speaker 1: the scenario they described. But the theory was accepted at
6:34
Speaker 1: face value. And then came the ballistics.
6:37
Speaker 6: Essentially, it boiled down the two things. Number One, there
6:42
Speaker 6: was one and only one AR fifteen that was present
6:48
Speaker 6: at the Jumping bull compound at that time according to
6:52
Speaker 6: the witness testimony, and that Peltier had been seen with
6:56
Speaker 6: an AR fifteen, and therefore the wichita Ar fifteen was
7:02
Speaker 6: Leonard Peltier's AR fifteen. Now, look, there a few problems
7:07
Speaker 6: with that. Number One is there's no proof that the
7:10
Speaker 6: wichita AR fifteen found in the car months later was
7:14
Speaker 6: ever at the Jumping Bull compound. And more important, there
7:17
Speaker 6: was evidence that the government was aware of that there
7:20
Speaker 6: were numerous Ar fifteens present at that time that were
7:26
Speaker 6: firing bullets. Because they found other shellcasings at the scene,
7:31
Speaker 6: and they found other bullets at the scene, that information
7:35
Speaker 6: was suppressed. The second thing that was crucial was that
7:40
Speaker 6: the very firearms expert who testified for the government had
7:45
Speaker 6: sent a teletype while the investigation was still going on,
7:50
Speaker 6: saying that the shellcasing that was found in the agent's
7:54
Speaker 6: car did not match the wichita Ar fifteen. It was
8:00
Speaker 6: from a different gun. And this was based on a
8:04
Speaker 6: firing pin test.
8:06
Speaker 2: If you recall from Part two of our coverage, we
8:09
Speaker 2: discussed the mechanics of a semi automatic weapon and how
8:13
Speaker 2: although this type of analysis is best suited for excluding
8:17
Speaker 2: weapons rather than matchmaking, a firing pin test is the
8:21
Speaker 2: most reliable for identifying an individual weapon, while an extractor
8:26
Speaker 2: mark can merely identify things like make or model. The
8:31
Speaker 2: FBI firearm analyst Evan Hodge testified that the casing had
8:35
Speaker 2: been loaded and extracted from the wichita Ar fifteen. This
8:39
Speaker 2: is why it was so important for both There to
8:42
Speaker 2: have been only one AR fifteen and that it be
8:45
Speaker 2: placed in Leonard's possession. However, there were other AR fifteens,
8:51
Speaker 2: and when they'd received the fire damaged AR fifteen from Wichita,
8:56
Speaker 2: the bolt mechanism was removed and was placed in a
8:59
Speaker 2: different AR fifteen. According to an October nineteen seventy five teletype,
9:04
Speaker 2: a firing pin test of that Wichita AR fifteen was
9:08
Speaker 2: negative for a match with the casing from Agent Cohler's trunk.
9:13
Speaker 6: That was never given over to the defense. Had those
9:17
Speaker 6: two pieces of information been given to the defense, obviously
9:21
Speaker 6: the defense would have been in a position to undermine
9:25
Speaker 6: the entire case against Leonard Peltier, and make no mistake
9:29
Speaker 6: about it. The case was presented as Leonard Peltier being
9:34
Speaker 6: the person wielding the Wichita AR fifteen who walked up
9:39
Speaker 6: to both agents as they lay wounded and executed them
9:43
Speaker 6: both with one shell casing being discarded into the agent's car.
9:49
Speaker 6: That was the theory of the trial. That was what
9:52
Speaker 6: the jury believed, and that's how the conviction arose.
9:57
Speaker 5: A prosecutor, he made a stake at the closing arguments
10:02
Speaker 5: that I was a cold bloody killer executioner and was effective,
10:06
Speaker 5: I guess.
10:07
Speaker 1: They added that the witnesses who undermined their own testimony
10:12
Speaker 1: perhaps should have been tried to, calling aim a blood
10:15
Speaker 1: crazed bunch, and however undermined that testimony, was it aligned
10:21
Speaker 1: with what appeared to be scientific evidence related to this
10:24
Speaker 1: one shell casing that may or may not have been
10:27
Speaker 1: ejected into this agent's trunk. When you think about it,
10:30
Speaker 1: with all of the other lies, it's hard to know
10:33
Speaker 1: whether to believe this or any of this so called evidence.
10:37
Speaker 1: But nonetheless, on the fateful day of April eighteenth, nineteen
10:42
Speaker 1: seventy seven, Leonard Peltier was convicted on two counts a
10:46
Speaker 1: first degree murder.
10:48
Speaker 5: The clerk of the court told us, Judge Benson's not
10:52
Speaker 5: going to give you no more than thirty years. I
10:54
Speaker 5: would get out in fifteen. I take some of that,
10:57
Speaker 5: but I was so fucking upset that I wrote a
11:00
Speaker 5: very strong anti government statement. I condemned the court, I
11:04
Speaker 5: condemned a judge and the whole system with such disregard
11:08
Speaker 5: for the constitution, attempts at exterminating us. And I read
11:13
Speaker 5: that just before he sentenced me, and he gave me
11:15
Speaker 5: two life sentences. So if I had to keep my
11:18
Speaker 5: mouth shut. I probably would have been out after fifteen years,
11:22
Speaker 5: but I was just so fucking angry that I just
11:26
Speaker 5: couldn't control myself. Right after I was convicted, the elders
11:44
Speaker 5: came up to the railing there and said, we want
11:47
Speaker 5: you to know that we will fight for you for
11:50
Speaker 5: the rest of our lives if you're still in prison,
11:53
Speaker 5: and our children will fight for you for the rest
11:56
Speaker 5: of their lives, and if you're still in there, our
11:59
Speaker 5: grandkids will fight for you. They sent me to marry
12:02
Speaker 5: in Illinois's the harshest president I had at that time.
12:06
Speaker 5: It took the place of Alcatraz. They put me in
12:09
Speaker 5: a hole there and so that they can find it.
12:12
Speaker 5: I went to a hearing about thirty days later, and
12:16
Speaker 5: the captain there sentenced me to a century deprivation cell indefinitely.
12:24
Speaker 5: It's complete darkness. They only got one blanket to sleep on,
12:29
Speaker 5: and the only time you get light is when they
12:31
Speaker 5: opened the food slot. People come out of their completely nuts.
12:36
Speaker 5: Some people never come out of there. I was supposed
12:39
Speaker 5: to die in her I said a lot of prayers
12:41
Speaker 5: to Uncle Tunka, get your man to do that's the
12:44
Speaker 5: great spirit, and I just made my mind up you
12:47
Speaker 5: ain't going to break me. But my lawyers and other
12:50
Speaker 5: people were fighting. They finally got a hearing in the
12:53
Speaker 5: Supreme Court said you cannot re sentence people to these
12:58
Speaker 5: type of cells he's been setting and beside that that
13:02
Speaker 5: soll you got there is illegal.
13:04
Speaker 2: At this point, Leonard's appeals had been picked up by
13:07
Speaker 2: Dino and Bob's attorney, William Kuntzler, and this small victory
13:11
Speaker 2: over cruel and unusual punishment came along with the denial
13:15
Speaker 2: of his direct appeal, at which time Leonard was transferred
13:19
Speaker 2: to another facility, Lompoc.
13:21
Speaker 5: And when I got there, I couldn't believe it. I mean,
13:25
Speaker 5: this was so.
13:26
Speaker 1: Many holes, holes in the wall.
13:28
Speaker 2: No, I mean to escape, like the fencing and lower security.
13:33
Speaker 5: And some of the towers wasn't occupied, and I was
13:36
Speaker 5: looking around here. I said, wow. So first opportunity I got,
13:40
Speaker 5: we went out during the night, made it across the
13:43
Speaker 5: fence and they were shooting at us by then, and
13:46
Speaker 5: Dallas Thundershield had his arms up surrendering and they shot
13:50
Speaker 5: him in the back. I was able to escape, and
13:53
Speaker 5: I was gone five days out in the desert.
13:56
Speaker 2: And made it to Santa Maria California.
13:58
Speaker 5: Yes, miles from the prison. I was heading from Mexico.
14:02
Speaker 5: I was going out there to Dickaraka and I was
14:05
Speaker 5: sitting under this tree, and I haven't looked down to
14:08
Speaker 5: the lower grounds, and I seen this garden and I thought, gee,
14:12
Speaker 5: that it would be nice to sit up here and
14:14
Speaker 5: eat the melon or whatever else I could do. So
14:18
Speaker 5: I go down to this garden and all sudden, this
14:20
Speaker 5: guy starts shooting at me. I put my arms up.
14:22
Speaker 5: He got close enough to me where I snatched the
14:25
Speaker 5: gun out of his hand, and then he said, I
14:27
Speaker 5: suppose you're going to kill me now. And I looked
14:30
Speaker 5: at him. I said, what the fuck you tried to
14:31
Speaker 5: kill me, fucking asshole, excuse my language. But he got
14:37
Speaker 5: all panicky now he was crying and everything, and no,
14:40
Speaker 5: I wasn't just trying to chase you out of my garden.
14:43
Speaker 5: And I said, you're that and I just said I
14:46
Speaker 5: can't do this. And I told him, I said, well,
14:48
Speaker 5: don't be running calling the cops. Let me get away
14:50
Speaker 5: from here, okay, okay, but call the cops soon as
14:54
Speaker 5: he could. I guess they could come all from all directions.
14:58
Speaker 5: When they had me on the ground. This deputy sheriff
15:01
Speaker 5: was putting on handcuffs. I mean, the FBI agent came
15:04
Speaker 5: and put that barrel right here, and he said, your
15:06
Speaker 5: son him a bit. You killed two of my friends.
15:08
Speaker 5: I'm gonna blow your fucking brains up. And I just
15:12
Speaker 5: looked at him as well, do it, fucking brave, asked
15:17
Speaker 5: ole motherfucker. Now that I'm handcuffed and everything, I said,
15:20
Speaker 5: do it shoot And the deputy sheriff we started shaking
15:23
Speaker 5: on my back and he said, I'm not going to
15:26
Speaker 5: be part of no killing. So they must have been
15:28
Speaker 5: talking about it to see me kill me.
15:30
Speaker 1: Leonard got seven more years for the escape and weapons possession.
15:35
Speaker 1: By this time, every new class of FBI agents was
15:38
Speaker 1: being indoctrinated with the image of Leonard Peltier as their boogeyman.
15:43
Speaker 1: And meanwhile, in Canada, this a listener general, a guy
15:46
Speaker 1: named Warren Almond, began to make noise about how the
15:50
Speaker 1: FBI and prosecutors had presented Myrtle Forbear's perjured Affidavid's at
15:55
Speaker 1: Leonard's extradition.
15:56
Speaker 5: Hearing the Native people in Canada forced him to do
16:00
Speaker 5: an investigation on the extradition. Then they sealed it for
16:03
Speaker 5: forty years. Warren Allman was very upset about it. He
16:07
Speaker 5: took him another year to get in there and read
16:10
Speaker 5: this investigation report, and he found a letter in there
16:14
Speaker 5: from the Justice Department here in the United States that said,
16:18
Speaker 5: if you put in this investigation and release it, we
16:22
Speaker 5: would hold the fifty five million dollars that we're going
16:26
Speaker 5: to send you to the Joint Agricultural Laboratory.
16:30
Speaker 2: Well, with Warren Allman's efforts, newtered Leonardstein also exhausted the
16:35
Speaker 2: Myrtle poor Bear evidence.
16:37
Speaker 5: In post conviction on the Myrtle porbar thing, the judge
16:41
Speaker 5: asked Evan Haltman, we don't understand how anyone could continue
16:45
Speaker 5: to extract information from this witness, because it's quite obvious
16:50
Speaker 5: she was not a real witness. So Haltman said, your Honor,
16:54
Speaker 5: I had nothing to do with her, and when I
16:56
Speaker 5: read her AFFI David, I knew there was not once
16:59
Speaker 5: entil of truth. A few years later we find a
17:03
Speaker 5: document he had flew into Rapid City, and prosecutor that
17:07
Speaker 5: was representing the United States and Canada flew in from
17:10
Speaker 5: Canada and they wrote her third affidavit.
17:14
Speaker 2: So Evan Holtman's deception was once again not discovered until
17:18
Speaker 2: it was too late. And around this time is when
17:22
Speaker 2: Ron Kobe got involved.
17:24
Speaker 6: When I was a law student way back in nineteen
17:27
Speaker 6: eighty two, I started interning for William Kunstler, and at
17:32
Speaker 6: that point he was very deeply involved in trying to
17:36
Speaker 6: secure a new trial for Leonard Peltier, and so I
17:41
Speaker 6: started working on that case almost immediately and continued when
17:45
Speaker 6: I was finally admitted to the bar in nineteen eighty four.
17:48
Speaker 6: Kunstler had obtained new information that he believed was the
17:52
Speaker 6: key to getting Leonard a new trial.
17:54
Speaker 3: So here we had ballistics evidence I mentioned before the
17:58
Speaker 3: agent gets on the stand as well. We can't definitively
18:01
Speaker 3: do a firing pin test, but we can do an
18:03
Speaker 3: extractor mark test, and in fact there's a match. And
18:07
Speaker 3: for lawyers, if you see a word in a government
18:10
Speaker 3: document that refers to another document, you got to go
18:14
Speaker 3: after it.
18:14
Speaker 6: I think it was a freedom of information. After request,
18:17
Speaker 6: Kunstler learned of the existence of this teletype from Agent Hodge,
18:24
Speaker 6: which had been suppressed.
18:26
Speaker 3: We asked for two October second teletypes that we had
18:29
Speaker 3: not gotten. Not only could that damaged AR fifteen from Kansas,
18:34
Speaker 3: at least the one that they used to test could
18:37
Speaker 3: produce a firing pin test, but those teletypes revealed that
18:41
Speaker 3: there was no match whatsoever whatsoever.
18:45
Speaker 1: In previous episodes, we've covered the FBI Crime Lab and
18:48
Speaker 1: the culture of misconduct, false testimony, and manipulating evidence that
18:51
Speaker 1: was exposed in the mid nineties by a whistleblower named
18:54
Speaker 1: Frederick Whitehurst, who came forward at great personal and professional risk.
19:00
Speaker 1: We're going to link to our coverage of Elmer Daniels,
19:02
Speaker 1: who was interviewed by fellow Xandery death Row Exunery by
19:05
Speaker 1: the way, John Huffington, both of whom had been victims
19:08
Speaker 1: of false testimony from the FBI Prime Lab, and it
19:12
Speaker 1: appears that this culture of misconduct was present during Leonard's trial,
19:16
Speaker 1: as Evan Hodge testified that his test casings and the
19:20
Speaker 1: casing from Kohler's trunk were loaded and unloaded from that
19:25
Speaker 1: particular rifle, while this October nineteen seventy five firing pin
19:29
Speaker 1: test said otherwise.
19:31
Speaker 6: And based on that, I filed emotion for a new trial.
19:35
Speaker 6: There was a very extensive evidentiary hearing where agent Evan
19:39
Speaker 6: Hodge tried to say he didn't mean to suggest that
19:45
Speaker 6: he was talking about the shellcasing found in the agent's car.
19:51
Speaker 6: He was testing other shellcasings, and it's like, really the
19:58
Speaker 6: most important piece of evidence in the case. And you
20:02
Speaker 6: send a teletype about other shellcasings belonging to other ar fifteens,
20:08
Speaker 6: which the FBI claimed weren't even at the scene. Made
20:12
Speaker 6: no sense, clearly a lie. But something very interesting happened
20:18
Speaker 6: in the course of the argument on that appeal. The
20:21
Speaker 6: government was not convinced they were going to win. The
20:27
Speaker 6: Eighth Circuit was skeptical, or at least made skeptical sounds,
20:33
Speaker 6: and so during oral argument the government said, look, we
20:37
Speaker 6: may not be able to prove that in fact, it
20:40
Speaker 6: was Peltier who fired the fatal bullets at close range.
20:46
Speaker 5: He said, your honor, I want you to know the
20:48
Speaker 5: government doesn't know who the shooter is nor what participation
20:52
Speaker 5: Leonard Peltier may have had in it.
20:55
Speaker 4: The government switched from Leonard doing it to no, no, no,
20:59
Speaker 4: Leonard was just a nat in.
21:00
Speaker 6: A better That was an amazing concession, because for over
21:05
Speaker 6: a decade the government and the FBI had been relentlessly
21:10
Speaker 6: saying that Leonard Peltier walked up to two wounded agents
21:15
Speaker 6: executed them at point blank range and suddenly the government saying, well, okay,
21:21
Speaker 6: maybe not, but he was shooting at them. Nonetheless, the
21:25
Speaker 6: judge denied the motion, and on appeal the Eighth Circuit
21:29
Speaker 6: said it would possibly have helped Peltier's defense to have
21:34
Speaker 6: this teletype. It would have helped impeach the agent. It
21:37
Speaker 6: would have helped you establish that there were other ar
21:40
Speaker 6: fifteens at the scene. But we're not convinced under the
21:45
Speaker 6: Brady standard that this was sufficiently material to create a
21:51
Speaker 6: reasonable possibility that a jury would have come to a
21:56
Speaker 6: different conclusion had they heard this evidence.
22:00
Speaker 1: In what Okay, So this Brady violation destroys the alleged
22:06
Speaker 1: evidence that Leonard had executed two wounded FBI agents in
22:11
Speaker 1: cold blood, leaving him, as it was now framed, as
22:15
Speaker 1: an alleged aider and a better.
22:18
Speaker 3: And that's where then it became an issue because wait
22:20
Speaker 3: a minute, if he was just an aider and a better,
22:22
Speaker 3: then how could the judge deny him the same defense
22:26
Speaker 3: that Daryl Butler and Bob Robberty you had where they
22:28
Speaker 3: were able to show that they had reasons to act
22:30
Speaker 3: in self defense on that day.
22:32
Speaker 6: So we go back into court once again using the
22:36
Speaker 6: government's concession is a basis for a new trial, and
22:41
Speaker 6: again the Eighth Circuit manages to affirm the conviction, pointing
22:46
Speaker 6: out that in the indictment Peltier was named as an
22:50
Speaker 6: aider and a better so in theory the conviction could
22:55
Speaker 6: be upheld, even though that was not the case the government.
23:00
Speaker 7: What up.
23:14
Speaker 4: Leonard?
23:15
Speaker 1: All these years decades in prison, forty nine years and
23:18
Speaker 1: eleven days, How did you manage to find hope inside
23:23
Speaker 1: those walls all those years.
23:24
Speaker 5: I didn't join the rest of inmates. I didn't go
23:27
Speaker 5: into what they usually do, drugs and drinking and things
23:31
Speaker 5: like that. I kind of went into my own little group.
23:36
Speaker 5: We played handball, worked out in the weights, and paint.
23:40
Speaker 5: I went into art room and I decided I was
23:42
Speaker 5: going to develop my artwork, and I went to school
23:45
Speaker 5: for a while, helped Peter Mansson write In the Spirit
23:48
Speaker 5: of Crazy Horse, and then I eventually wrote my own book,
23:52
Speaker 5: Prison Writings, and In the Spirit of Crazy Horse went
23:55
Speaker 5: to number one best seller in the world. The FBI
23:59
Speaker 5: filed twenty million dollar lawsuit. Bill Jankel, the governor of
24:03
Speaker 5: South Dakota, filed a twenty five million dollar losson They
24:07
Speaker 5: held it off. The bookshelves for eight and a half years,
24:10
Speaker 5: cost us two and a half million dollars to defend ourselves, and.
24:13
Speaker 1: I hope everyone will order recovery of that book. But
24:15
Speaker 1: you had on your side, not just Pope Francis Art
24:19
Speaker 1: Bishop too, to Mother, Teresa Nelson, Mandela Muhammad, Ali.
24:23
Speaker 5: Marlon Brando, Robert Redford, Peter Coyote.
24:27
Speaker 1: The Dali, Lama, Coreta, Scott.
24:29
Speaker 5: King, Santana, Grateful Dead, Willian.
24:33
Speaker 4: Nelson, Johnny Depp.
24:34
Speaker 1: Of course Rage Against the Machine.
24:37
Speaker 2: I know a lot of gen xers and millennials like
24:40
Speaker 2: myself were too young to know about Leonard when the
24:43
Speaker 2: case happened back in nineteen seventy five. Some of us
24:46
Speaker 2: weren't born yet. However, a lot of people heard about
24:49
Speaker 2: Leonard with a music video for Freedom by Rage Against
24:53
Speaker 2: the Machine was released on MTV back when that was
24:56
Speaker 2: still a thing. If you went to a rage show,
24:59
Speaker 2: especially support of that album, you heard a lot about Leonard.
25:03
Speaker 2: And that was nineteen ninety four, and his cause gained
25:06
Speaker 2: a lot of political momentum toward the end of the
25:09
Speaker 2: Clinton administration, not just because of Rage Against the Machine,
25:12
Speaker 2: but also because a former FBI agent turned Congressman Don
25:17
Speaker 2: Edwards joined the cause as well.
25:19
Speaker 5: Don Edwards, he was a supporter of mine and he
25:23
Speaker 5: was doing an interview and they asked him and they said,
25:26
Speaker 5: why are you supporting someone that was convicted of killing
25:30
Speaker 5: two year agents? He said, I worked there, I know
25:34
Speaker 5: what they did to Leonard. And there's others. There's probably
25:37
Speaker 5: about ten more FBI agents that came forward and said
25:41
Speaker 5: they don't use this term, but it meant they manufactured
25:44
Speaker 5: evidence and tortured witnesses and things like that.
25:48
Speaker 1: So the political will was primed for Clinton's final days
25:52
Speaker 1: in office as a team of people, including Bruce Ellison,
25:55
Speaker 1: advocated passionately for Leonard's clemency.
25:58
Speaker 3: And we got some very interesting contacts from some Hollywood
26:02
Speaker 3: folks who had regular contacts with the Clintons. We met
26:06
Speaker 3: with White House counsel and chief of staff. We had
26:10
Speaker 3: a really good meeting.
26:11
Speaker 1: Was that Bruce Lindsay.
26:12
Speaker 4: Bruce Lindsay was one of the participants.
26:14
Speaker 3: Yes, And leading up to this, about several weeks before
26:21
Speaker 3: Senator Dashel from South Dakota was the Senate majority leader
26:24
Speaker 3: at the time, took William Janklow, who.
26:28
Speaker 1: Was Leonard, told us about his early life too. He's
26:30
Speaker 1: a reprehensible character must bartant.
26:34
Speaker 3: Yeah, he was basically a convicting tribal court a child, right.
26:37
Speaker 2: If you remember we talked about Bill Jenklow's privileged existence,
26:41
Speaker 2: his alleged serial rape ignored not only by law enforcement
26:45
Speaker 2: but by South Dakota voters, paving the way to Janklow
26:50
Speaker 2: becoming Attorney general Governor of South Dakota twice, as well
26:54
Speaker 2: as his path to Congress. And after all this time
26:57
Speaker 2: for Leonard and Ames audacity to RaSE Gencida Eagle Deer's allegations.
27:02
Speaker 2: During Janklow's run for AG in nineteen seventy four, Jinklow
27:07
Speaker 2: actively lobbied against Leonard's clemency. In the year two.
27:10
Speaker 3: Thousand, Dashel leads Janklo in to meet with Clinton. Clinton
27:16
Speaker 3: was told that South Dakota senator would lose the next election.
27:20
Speaker 3: It was going to cost the Democrats the Senate if
27:23
Speaker 3: he pardoned Peltier, which is bullshit.
27:26
Speaker 4: But we have this meeting the next week.
27:28
Speaker 3: This is on like a Friday, a week before Clinton's leaving.
27:31
Speaker 4: Office, and it goes great.
27:33
Speaker 3: And in fact, I was asked to draft up a
27:35
Speaker 3: bunch of bullet points for Clinton to say at a
27:38
Speaker 3: press conference. Announcing the clemency, and then on Wednesday of
27:42
Speaker 3: the following week, Clinton's lawyers, according to the Hollywood People,
27:47
Speaker 3: said that meeting on Wednesday was about whether Clinton was
27:50
Speaker 3: going to be indicted for perjury in front of the
27:53
Speaker 3: grand jury, white Water grand Jury, Monica Lewinsky grand jury,
27:57
Speaker 3: and other things.
27:58
Speaker 4: And I've been through lots of.
28:00
Speaker 3: Of times that they do questioning and work out deals
28:03
Speaker 3: and all this stuff. And basically, while I don't know
28:05
Speaker 3: the exact words, Leonard's name came up four times during
28:09
Speaker 3: the day's discussions, and basically Clinton got the idea and
28:13
Speaker 3: he was told, look, if you grant this clemency, anytime
28:16
Speaker 3: you want your huousand two hundred thousand dollars speaking engagements
28:19
Speaker 3: wherever you are in the country of the world, that's
28:21
Speaker 3: going to get picketed by cops and we're going to
28:23
Speaker 3: make it difficulty you to earn your money.
28:25
Speaker 4: Well, you can do nothing, and he did nothing.
28:29
Speaker 1: By this time, the Supreme Court had also ignored Leonard's
28:31
Speaker 1: case despite the blatant material Brady violation, and so the
28:35
Speaker 1: legal battle began to focus on obtaining an estimated one
28:38
Speaker 1: hundred thousand undisclosed FBI documents through Foyer requests to see
28:44
Speaker 1: what else they could find.
28:46
Speaker 6: Leonard went through a number of lawyers who were fighting
28:49
Speaker 6: this issue, and he re enlisted me. I think back
28:52
Speaker 6: in two thousand and six, back in the o's we
28:56
Speaker 6: got a lot of documents, and a lot of documents
28:59
Speaker 6: we didn't yet, and a lot of documents we still
29:02
Speaker 6: haven't received.
29:03
Speaker 2: But nothing of newt was handed over. Meanwhile, as sentencing
29:07
Speaker 2: law went before nineteen eighty four, despite his double life sentence,
29:12
Speaker 2: Leonard became eligible for parole after twenty five years plus
29:17
Speaker 2: the seven years he'd gotten for the escape and weapon possession,
29:20
Speaker 2: and his lawyer made a strong presentation that was summarily
29:24
Speaker 2: denied for an additional fifteen years, during which time they
29:29
Speaker 2: lobbied the Obama administration twice to no avail, and Leonard
29:33
Speaker 2: was denied parole again at the Parole board in twenty
29:37
Speaker 2: twenty four, with just a few months left in the
29:40
Speaker 2: Biden administration.
29:42
Speaker 6: Administrations, far more sympathetic to Native American issues, refused to
29:48
Speaker 6: grant him clemency. Every judicial remedy had been exhausted. I mean,
29:52
Speaker 6: there's two ways to look at the legal fight. One
29:56
Speaker 6: way is that ongoing consistent legal bans adults shipping away
30:01
Speaker 6: at the prosecution's case helped enable the mass movement that
30:07
Speaker 6: eventually succeeded in winning clemency for Peltier. That's what I
30:12
Speaker 6: choose to believe. There is another position you could take,
30:15
Speaker 6: which is, despite hundreds of thousands of lawyer hours being
30:21
Speaker 6: poured into the case, nothing that any of the dozens
30:26
Speaker 6: of lawyers did accomplished a single damn thing for Leonard.
30:31
Speaker 5: But my people have never given up on me. That
30:36
Speaker 5: was very, very encouraging.
30:37
Speaker 3: You know, Leonard's long had such international recognition and efforts
30:44
Speaker 3: at justice put forth and that have always been ignored.
30:48
Speaker 3: But the combination this time worked. You know, all the
30:50
Speaker 3: tribal leaders got together. Secretary Headland spoke to Biden a
30:54
Speaker 3: couple of times privately. There was a lot of people
30:57
Speaker 3: who were just making a lot of things happen. And
30:59
Speaker 3: then Tilson and Holly really just did a tremendous job.
31:03
Speaker 3: And so anyway, somewhere in this mix, Biden decides to
31:06
Speaker 3: do the right thing.
31:07
Speaker 1: So Holly mccaro and Nick Tilson, from an advocacy group
31:10
Speaker 1: called Indian Collective, along with a former federal judge named
31:13
Speaker 1: Kevin Sharp, petitioned the Biden administration for clemency. And there's
31:17
Speaker 1: a documentary called pre Leonard Peltier that we're going to
31:20
Speaker 1: link in the episode description. I highly recommend it. By
31:23
Speaker 1: the way, the moment the news came through was caught
31:26
Speaker 1: on video. It gave me full body jills watching that
31:30
Speaker 1: and Holly mccaro, she was actually there for this incredible moment.
31:35
Speaker 7: On the day that Leonard was granted clemency, I was
31:40
Speaker 7: in the parking lot in Florida. He was in Coleman,
31:43
Speaker 7: the Federal Max. We had told Leonard that we had
31:46
Speaker 7: had some strong indications and were feeling very positive, but
31:49
Speaker 7: again we had to see it in writing because of
31:52
Speaker 7: what happened with Clinton, where they told him he's on
31:54
Speaker 7: the list, then they wake up and he wasn't on
31:56
Speaker 7: the list. So we expected it to be on Monday morning.
32:00
Speaker 7: So we're in the parking lot. We prayed, we sang
32:03
Speaker 7: our songs, we smudged, and I was in very close
32:06
Speaker 7: contact with several folks within the White House while we
32:10
Speaker 7: were waiting. Fred Dejarlie, who's a spiritual leader. He was
32:13
Speaker 7: with us and he said, there's an eagle over there,
32:15
Speaker 7: and I didn't know that there were bald eagles in
32:18
Speaker 7: Florida that far south, and we all looked and there
32:20
Speaker 7: were two eagles circling above us. You could hear them whistling.
32:23
Speaker 7: That was maybe then around eleven fifteen am and sixteen
32:27
Speaker 7: seventeen eighteen, we were hitting refreshed on White House dot
32:31
Speaker 7: Gov over and over. I was too Yeah, if I'd
32:35
Speaker 7: never have to hit refresh again, it'll be too soon.
32:37
Speaker 7: But I had already begun receiving notes from friends and
32:40
Speaker 7: family and folks who know I had been working in
32:43
Speaker 7: advocacy for Leonard and saying, oh, I'm really sorry, because
32:47
Speaker 7: there was already video of the president leaving the White
32:49
Speaker 7: House and heading for the Capitol on inauguration day there.
32:52
Speaker 7: So I think it was eleven forty four when the
32:55
Speaker 7: announcement came through and we celebrated in the parking lot there,
32:59
Speaker 7: and that announcement it was just that he had commuted
33:02
Speaker 7: his sentence. We didn't receive the detail with the home
33:05
Speaker 7: confinement or the date of February eighteenth until a couple
33:08
Speaker 7: of hours later, and Leonard called me, and almost exactly
33:11
Speaker 7: an hour later, and he said, well, my dear, I've
33:14
Speaker 7: been on pins and needles. I've been up since midnight.
33:17
Speaker 7: He said, did you do it? And I said, yes, Leonard,
33:21
Speaker 7: President Biden granted you. Clemency was sixteen minutes left in
33:24
Speaker 7: his administration. He said, did you see it in writing?
33:27
Speaker 7: And I said, I saw it in writing. And then
33:29
Speaker 7: Leonard said, so it's real, then it's real. I said, yes,
33:32
Speaker 7: it's real. You'll be going home.
33:35
Speaker 5: I didn't really believe that I got it even after
33:38
Speaker 5: the war and called me down, gave me a copy
33:40
Speaker 5: of this commendation and everything, and I said, that is
33:44
Speaker 5: all a joke, man, And so I really didn't believe
33:47
Speaker 5: it even very few days later. I just you're going
33:50
Speaker 5: to come tell me at any moment, so bullshit. And
33:53
Speaker 5: I were playing games or whatever else. So that's what
33:56
Speaker 5: went through my mind.
33:58
Speaker 6: And honestly, I don't think if anybody saw that coming.
34:02
Speaker 6: I think that most of us, if we're going to
34:06
Speaker 6: be honest with ourselves, never thought we would see the
34:10
Speaker 6: day that Leonard would walk out of prison alive. And
34:14
Speaker 6: it was just ironic. It took a man with absolutely
34:19
Speaker 6: no political future left to him to summon up the
34:23
Speaker 6: political will to go ahead and sign that paper.
34:27
Speaker 5: Got in a car with Holly and Nick and hell
34:31
Speaker 5: out of.
34:31
Speaker 7: Here, we had a ribbon shirt, we had new moccasins
34:34
Speaker 7: for him as he began this new path forward, and
34:38
Speaker 7: then we had a ceremony to help him leave some
34:41
Speaker 7: of this behind him and flew him home to Turtle Mountain.
34:46
Speaker 2: Leonard is finally out of prison, but he's still under
34:49
Speaker 2: house arrest for the terms of his clemency.
34:51
Speaker 1: Which come on house arrest after what we've heard here.
34:55
Speaker 1: But at least Leonard is finally able to breathe free air,
35:00
Speaker 1: see family and friends, and see a doctor outside of prison.
35:05
Speaker 2: After fifty years of medical neglect, he is in dire
35:09
Speaker 2: need of medical attention at the age of eighty. We
35:12
Speaker 2: will link ways to donate in the episode description here,
35:16
Speaker 2: as well as other action steps, And of course we
35:20
Speaker 2: asked Leonard and Bruce what else people can do.
35:23
Speaker 5: I need my story told again and again and again
35:27
Speaker 5: because hopefully it will help my people.
35:31
Speaker 3: This is a message for people lawyers who I want
35:33
Speaker 3: to encourage young lawyers to get involved. But that is
35:37
Speaker 3: you've got to remember that this is a war, and
35:40
Speaker 3: it's a real war, and they fight it in different ways,
35:43
Speaker 3: and yes there are risks, because we know the American
35:46
Speaker 3: government works in a way that they never go after
35:49
Speaker 3: people for political reasons.
35:51
Speaker 4: They're always going after them because they're criminals.
35:53
Speaker 3: Well, when Jed Cahover passed away to read a book
35:56
Speaker 3: by Sanford Hunger about the FBI the POSTI, one of
35:59
Speaker 3: the things he mentions in there was to cover that
36:02
Speaker 3: up and make it legal. They entered instructions that if
36:05
Speaker 3: you decided to actually target a person, you have to
36:08
Speaker 3: put in some crime that you believe that you're actually investigating,
36:13
Speaker 3: so that whatever the result is, it's not because they're
36:16
Speaker 3: trying to defend their people they want to protect the
36:19
Speaker 3: land from a hazard this pipeline. It's because they're engaged
36:22
Speaker 3: in criminal activities.
36:24
Speaker 4: And thus we have the world that.
36:25
Speaker 3: We have today right where we're going to watch people
36:29
Speaker 3: around it up. There's always going to be some law
36:32
Speaker 3: that they're going to try and claim. Now having a
36:33
Speaker 3: little problem with the immigration stuff, but really they're going
36:36
Speaker 3: to pass laws in Congress. They're going to do what
36:38
Speaker 3: they did in South Dakota and a lot of other
36:40
Speaker 3: places where what they call anti riot booster laws where
36:43
Speaker 3: they essentially criminalize nonviolent civil disobedience as terrorism. The struggle
36:51
Speaker 3: to protect the earth, to protect the people in terms
36:54
Speaker 3: of having a livable world and a sustainable world and
36:57
Speaker 3: a free world. That struggle is now reach out another height.
37:00
Speaker 3: There's renewed Indian activism and the government is going after
37:04
Speaker 3: people now, so we have like the next wave which
37:07
Speaker 3: is coming, and men like Leonard Peltier and beIN Pular though,
37:11
Speaker 3: they're the ones that will help and are helping to
37:14
Speaker 3: inspire the young people and give a direction of discipline
37:18
Speaker 3: and love and honor and respect. It's been an honor
37:23
Speaker 3: of mine despite what I have gone through, and I
37:26
Speaker 3: got a lot of messages for lawyers who want to
37:27
Speaker 3: get involved in this particular work. Be prepared for anything,
37:30
Speaker 3: because you get treated like the people you're representing. They
37:33
Speaker 3: literally think you're part of it. And to some extent,
37:36
Speaker 3: I honorably became part of that. Because this is the
37:38
Speaker 3: real world. These are things that affect people's daily ability
37:43
Speaker 3: to survive.
37:44
Speaker 1: We have a tradition here at Wrongful Conviction. It's called
37:47
Speaker 1: closing arguments, and it's where I first of all, thank
37:50
Speaker 1: you again from the bottom of my heart for being
37:52
Speaker 1: here and sharing this story with us. And then I'm
37:57
Speaker 1: just going to kick back in my chair and listen
37:59
Speaker 1: to anything else you feel has been left unsaid.
38:02
Speaker 7: I think it is so important to tell this story.
38:05
Speaker 7: It's about injustice, eventual justice. When we share this story
38:10
Speaker 7: with audiences like yours, it helps us ensure that this
38:13
Speaker 7: will never happen again, but it also lets us know
38:16
Speaker 7: that the work continues. Many of the things that inspired
38:19
Speaker 7: the birth of the American Indian Movement in Minneapolis, and
38:21
Speaker 7: that inspired Dino and Leonard and other leaders of the
38:25
Speaker 7: movement back then, those conditions exist today. Their activism and
38:29
Speaker 7: voices brought us to the table in the nineteen seventies
38:32
Speaker 7: and inspired landmark legislation that we all rely on today
38:36
Speaker 7: to protect American Indian rights. But some of those conditions
38:39
Speaker 7: exist today, and I think Leonard looking forward has an
38:41
Speaker 7: important platform and role of leadership in making sure that
38:44
Speaker 7: the injustice doesn't happen again, but that we are also
38:47
Speaker 7: always making the noise to protect our people.
38:49
Speaker 3: In these dangerous and threatening times, it is important for
38:55
Speaker 3: us to remember that we can either go as sheep,
38:59
Speaker 3: or we can stand up. And if we stand up,
39:02
Speaker 3: and especially stand up for those who were being threatened
39:05
Speaker 3: by aspects of our system that's designed to stop exposure
39:11
Speaker 3: the truth the reality of too many people in this
39:14
Speaker 3: country and we figure out how to do it together
39:17
Speaker 3: and do it with love. But most importantly, there's too
39:21
Speaker 3: many people who been wrongfully convicted and who are still
39:23
Speaker 3: in prison, and anyone who can do anything to help,
39:27
Speaker 3: information whatever, don't forget those people.
39:31
Speaker 4: You just never know what.
39:33
Speaker 3: Might happen if you keep trying, and you keep sending
39:36
Speaker 3: all those prayers and strength and love to those who
39:40
Speaker 3: are decision making, it's keeping that person strong and healthy.
39:43
Speaker 3: So I guess that's what I'd say, because it's only
39:46
Speaker 3: together we can do this, and we can't.
39:49
Speaker 5: I can't express how I'm actually feeling about this freedom.
39:54
Speaker 5: Like I said, I've never expected it. I didn't think
39:57
Speaker 5: it was going to happen. I thought it was going
39:59
Speaker 5: to in prison. But it isn't just about Leonard Peltier.
40:04
Speaker 5: It's about the struggle. It's about what they did or
40:08
Speaker 5: try to do to us Natives. They tried to exterminate us.
40:13
Speaker 5: We were we're not supposed to exist no more. We
40:16
Speaker 5: were supposed to be gone by nineteen eighty five, that's
40:19
Speaker 5: when the extermination policy was supposed to be completed. So
40:23
Speaker 5: for me to be able to fight for my people
40:27
Speaker 5: and sacrifice is an honor. I would not hesitate to
40:32
Speaker 5: fight for them again, even though I went through fifty
40:35
Speaker 5: years in prison. It's just something that was honor for
40:38
Speaker 5: me to fight for my people, and it's honor for
40:42
Speaker 5: me to be able to talk to them now, to
40:45
Speaker 5: all the people around the world that supported me. It's
40:47
Speaker 5: something I can't really express how grateful I am, how
40:52
Speaker 5: honored I am that they would put me in this position,
40:55
Speaker 5: and I'm just very grateful for everything everybody's doing.
41:05
Speaker 1: Thank you for listening to Wrongful Conviction. You can listen
41:07
Speaker 1: to this and all the Lava for Good podcasts one
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Speaker 1: Good Plus on Apple Podcasts. I want to thank our
41:16
Speaker 1: production team, Connor Hall and Kathleen Fink, as well as
41:19
Speaker 1: my fellow executive producers Jeff Kempler, Kevin Wartis, and Jeff Kleiber.
41:23
Speaker 1: The music in this production was supplied by three time
41:25
Speaker 1: OSCAR nominated composer Jay Ralph. Be sure to follow us
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Speaker 1: across all social media platforms at Lava for Good and
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Speaker 1: at Wrongful Conviction. You can also follow me on Instagram
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Speaker 1: at It's Jason Flamm. Wrongful Conviction is a production of
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41:43
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41:48
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