Posted November 12th, 2021.
His trial was riddled with misconduct that would never hold up in a U.S. court today. Prosecutors hid key evidence. The FBI threatened and coerced witnesses into lying. A juror admitted she was biased against Peltier’s race on the second day of the trial, but was allowed to stay on anyway.
And now, with Joe Biden in the White House, his supporters feel a renewed sense of hope that Peltier may, at last, have a shot at living out his final years as a free man.
Biden has demonstrated a willingness to address past injustices against Native Americans. He’s made it a priority to examine the U.S. government’s ugly history of Indian boarding schools, to protect sacred Indigenous sites and cultural resources, and to address the crisis of missing and murdered Indigenous women. He canceled the Keystone XL oil pipeline, a major win for Native American tribes and environmentalists.
He also chose Deb Haaland to lead the Interior Department, making her the nation’s first Indigenous Cabinet secretary. Haaland advocated for Peltier’s release from prison in her former role as a U.S. congresswoman.
For Peltier supporters like James Reynolds, these are all reasons for hope. Reynolds was the U.S. attorney who helped put Peltier in prison in the 1970s. In an extraordinary July letter to Biden that has not been made public until now, Reynolds says he has realized over the years how unfair Peltier’s trial was, and that it would serve justice to let him go home.
“I write today from a position rare for a former prosecutor: to beseech you to commute the sentence of a man who I helped put behind bars,” he wrote. “With time, and the benefit of hindsight, I have realized that the prosecution and continued incarceration of Mr. Peltier was and is unjust. We were not able to prove that Mr. Peltier personally committed any offense on the Pine Ridge Reservation.”
Reynolds pleads with Biden to grant clemency to Peltier as a step toward healing “the broken relationship” between Native Americans and the U.S. government.
“I urge you to chart a different path in the history of the government’s relationship with its Native people through a show of mercy rather than continued indifference,” he said. “I urge you to take a step towards healing a wound that I had a part in making.”
Here’s a copy of Reynolds’ letter.
Members of Congress are looking to Biden to free Peltier, too.
Last month, Rep. Raul Grijalva (D-Ariz.) led 10 House Democrats in a letter to the president and Attorney General Merrick Garland urging an expedited release for Peltier. They note that Peltier has serious health problems with diabetes and an abdominal aortic aneurysm.
“Given the unprecedented impact of the COVID-19 pandemic in our country, as well as Mr. Peltier’s underlying health conditions and age, we request immediate action be taken to release him from federal custody,” reads their letter. “Mr. Peltier has yet to receive a fair trial that is free from constitutional violations. … He has served more than 43 years in the federal prison system, some of which have been in solitary confinement. The support for Mr. Peltier’s request for clemency is both widespread and strong.”
Grijalva told HuffPost that Peltier has been punished for maintaining his innocence. He had a shot at being released in 2009 when he was up for parole, but it would have required him to admit that he murdered the two FBI agents.
He wouldn’t do it. His parole was denied.
“Whatever punishment was meant to be meted out to Leonard has been done. It’s done,” said the Arizona congressman. “The fact that he has held to his innocence shouldn’t be a reason to deny this. He has been consistent about his position from the beginning ― from being arrested to incarcerated to this day.”
The facts may be on Peltier’s side. Biden may be the most receptive president yet to pleas to end Peltier’s imprisonment. But there’s still this nagging problem with his case: Nobody in the upper echelons of the U.S. government seems to want to talk about it.
A White House spokesperson did not respond to multiple requests for comment on whether Biden would consider clemency for Peltier.
A Justice Department spokesperson declined to comment.
The FBI declined to comment.
The most obvious question remains the simplest one: why is Leonard Peltier still in prison?
“That’s the $64,000 question,” said Kevin Sharp, who is Peltier’s pro bono attorney. “It’s why it makes my head hurt trying to figure this out.”
Sharp didn’t know who Peltier was until a few years ago. A former U.S. district court judge appointed by President Barack Obama, he had been on the bench for six years when he stepped down in 2017 over his disgust with mandatory sentencing laws forcing him to put people in prison who he otherwise may not have imprisoned at all. He turned around and became the lawyer for one of the people he had just put into prison.
In an unexpected turn of events, he connected with Kim Kardashian West and landed a meeting with President Donald Trump in the Oval Office, where they lobbied Trump to grant clemency to two people whose cases they’d gotten involved in. Both of the people Sharp was advocating for were released, and it wasn’t long before the story made national news and Sharp’s phone was blowing up with people asking for help with clemency cases.
One of the people who reached out was Willie Nelson’s ex-wife, Connie Wilson, a longtime Peltier supporter. She sent Sharp a package of materials about Peltier’s case, a package that was so big that Sharp sat down and started going through it out of curiosity. Eight hours later, after poring over trial transcripts, newspaper clippings and case opinions, Sharp said he was “floored” by all the problems with Peltier’s case.
“This thing is so riddled with misconduct and just flat-out court decisions that would never happen today,” said Sharp. “They withheld ballistic evidence that proved it wasn’t Leonard’s weapon. At the very least, we’d need to have another trial…. They wouldn’t have even gotten an indictment because they had no evidence, except for three kids pressured to say they saw him. They recanted all that evidence. And said they were threatened.”
There was a darker element to the case, too. Among the documents Sharp received was an internal FBI memo, obtained via a Freedom of Information Act request, directing U.S. attorneys to put all of their resources into convicting Peltier. All of his co-defendants had been acquitted. The FBI needed someone to go to prison. Peltier was the only person left to go after.
“This is not about one Indian anymore. This is about the Constitution.”
– Kevin Sharp, Lenoard Peltier’s attorney
Another FBI memo laid out the bureau’s broader strategy for suppressing AIM, which is what led to the shoot-out in the first place. The agency’s plan was to “continually harass and arrest and charge” AIM members to keep them tied up in court, said Sharp, so they “can’t protest their own treatment.”
AIM members operating out of the Pine Ridge Reservation were supporting local tribal members in demanding their land back from the U.S. government, and the FBI wanted them to stop, even if it meant inciting violence. The bureau was helping the tribal chairman, who was corrupt and working with the U.S. government for his own purposes, to carry out violence against AIM members.
“Part of what’s going on is an extermination policy,” said Sharp. “We’re taking your land, your minerals. We’re going to get rid of you altogether…. That’s what started it. That’s what the counterintelligence was running.”
Peltier’s case was also happening just a few years after J. Edgar Hoover’s reign at the FBI, an era marked by his secretive abuses of power and tactics aimed at harassing political activists in an effort to amass secret files on political leaders.
Connecting all these dots, Sharp said he had to take Peltier’s case.
“I’m reading through all this as a federal judge going, ‘Oh my god, this is all proven,’” he said. “I get back with Connie Nelson and say, ‘Yeah, I’ll help. I’ll do it pro bono. … This is too important. This is not about one Indian anymore. This is about the Constitution.’”
So why, again, is Peltier still in prison, despite all the damning evidence lining up in favor of his wrongful conviction?
“Politics,” said Sharp. “In order to get clemency, you have to get the FBI on board. They have an inherent conflict. You have to get the U.S. Attorney’s Office on board. They lied to get him in prison. They have an inherent conflict. They’re not going to say, ‘Oops, sorry.’”
“It’s this holdover with the FBI,” he added.
Sharp filed Peltier’s clemency petition with the Biden administration in July.
He hasn’t gotten any response.
HuffPost talked to a number of people who have played a role in either fighting or preserving Peltier’s imprisonment over the years ― international human rights attorneys, senior-level officials from the Obama administration, Peltier’s longtime allies ― and they all pointed to the same reason for him remaining in prison: resistance from the FBI.
Justin Mazzola, deputy director for research at Amnesty International USA, said he and his colleagues were “completely blindsided” when Obama declined to grant clemency to Peltier at the end of his presidency. Amnesty International USA has devoted an entire campaign to Peltier’s release and believed that Obama would deliver.
“I really think it’s the weight that the FBI and Justice Department carry that prevents presidents from granting clemency,” said Mazzola, suggesting Peltier’s case raises particular red flags. “Not only because he was convicted of killing 2 FBI agents, but all of these issues at trial come down to issues by the FBI and U.S. Attorneys that were involved in his case.”
“It’s a travesty of justice,” he added.
Going back further, some of Peltier’s supporters say President Bill Clinton appeared ready to grant Peltier clemency until the FBI signaled it would cause trouble for him.
“We were told at the time that the Clintons were agonizing, that the night before he left office, he was agonizing over the Peltier case,” said Jack Magee, a longtime friend of Peltier’s and organizer with the International Leonard Peltier Defense Committee, a hub of communication between Peltier and the public, political and tribal leaders, and the media. “The following morning, Leonard’s name was gone [from the clemency list].”
Days earlier, FBI leadership had quietly signaled approval of nearly 500 active and retired FBI employees gathering outside the White House to protest Clinton potentially releasing Peltier. That, in itself, was a stunning break from discipline.
“I think Bill Clinton wanted to free Leonard,” said Magee. “But [the FBI] had issues they could use against him. He had the option of, ‘Go and live a good life, get a quarter million dollars for a good speech, or do this and we’ll hurt you, make your life miserable.’”
Sharp was heavily lobbying Trump to release Peltier in his final days in the White House. He even had colleagues on the phone with Jared Kushner and Ivanka Trump one morning, and said he was “looking for anything for leverage” to use to make his case for Peltier. But he stopped getting calls back by noon.
And like his White House predecessors, Trump ultimately punted on it.
The FBI’s resistance to releasing Peltier doesn’t appear to have changed much in four decades, but the culture and attitudes around it have.
George Floyd’s murder and the Black Lives Matter movement have forced conversations on the nation’s fundamental problems with racism and law enforcement. In a time of deep political polarization in Congress, criminal justice reform has strong support from both parties. The president of the United States is taking major, historic steps to rectify past injustices against Native Americans, and has made significant Indigenous hires within his administration.
If anything, Peltier’s activism from decades ago has come full circle.
“Absolutely,” Grijalva said. “What was being fought for ― to define history in Indigenous terms, not just in white people’s terms ― that was the battle. And that continues.”
But there is still a man in prison who shouldn’t be there. And given his failing health, Peltier’s last shot at freedom almost certainly rests with Biden.
“He’s out of appeals,” said Mazzola of Amnesty International. “He has no real opportunities.”
HuffPost requested an interview with Peltier, either by phone or in person at his prison. But Sharp said the Federal Bureau of Prisons has to give Peltier permission to talk to reporters, and it’s “next to impossible” to make it happen.
A spokesperson for the Federal Bureau of Prisons did not immediately respond to HuffPost’s request for an interview.
Reynolds, the former U.S. Attorney, said he keeps thinking about how Peltier was charged with murder for being present during a violent scene where people were killed ― the same circumstances for hundreds of Trump supporters during the Capitol attack on Jan. 6, except they all just went home afterward.
He can’t shake the unfairness of it all. And the racism beneath it.
“Why aren’t all the Jan. 6 rioters charged with murder? They were all there. People were killed. What’s the difference?” he asked. “Leonard at least had a more legitimate argument to make, that he was protesting government conduct and their treatment of the Indians.”
Reynolds said he hasn’t spoken to Peltier since helping to put him in prison so many years ago. Asked what he would say to him now, if he could say something, he went quiet.
“I’m sorry,” Reynolds finally said. “I’m sorry I can’t convince anyone else that you should be able to go home and die.”