Saturday, November 19, 2011

Open Letter to President Barack Obama: Free Leonard Peltier Now

President Barack Obama
The White House
1600 Pennsylvania Avenue, NW
Washington, DC 20500
18 November 2011

Dear President Obama,

In September, you invited Americans to interact with you and your Administration via the We the People component of the White House Web site. In good faith, We the People established a petition and thousands of signatories participated.

We the People took you at your word that we'd receive a response if we succeeded in reaching the benchmark of 5,000 or more signatures. We exceeded your benchmark, Mr. President. What is not generally known is that an additional 7,000+ hard copy signatures were sent to the White House, as well. In all, over 12,000 signatures were collected and delivered in a 30-day period.

We the People waited. Patiently. And then, today, we received your reply, i.e., a statement that you cannot comment on our petition.

We the People have read your Constitution, Mr. Obama. We are familiar with procedures related to the award of clemency, too.

We the People are aware of the clemency application review process (28 C.F.R. Part I, §§ 1.1-1.11). We also know that these guidelines do not bind the President. Congress and government operating units such as the Department of Justice (DOJ) cannot regulate or limit the presidential clemency power. You have the power to grant clemency to anyone, for any reason, regardless of whether they have submitted an application. The absolute authority to grant clemency to federal prisoners belongs only to the President of the United States (under Article II, Section 2, of the U.S. Constitution).

We the People know that the Office of the Pardon Attorney advises the President and has been located within the DOJ since the 19th century. We respectfully suggest that past presidents have relied too heavily on the will of prosecutors. We see no reason for this trend to continue in light of what is known today, i.e., that prosecutorial misconduct is a leading contributor to the incidence of wrongful convictions in the United States.

We the People know that the Peltier case is the most egregious example of investigative and prosecutorial misconduct in U.S. history.

Leonard Peltier is a Native American activist accused in 1975 in connection with the shooting deaths of two agents of the Federal Bureau of Investigation (FBI). Government documents show that, without any evidence at all, the FBI decided from the beginning of its investigation to 'lock Peltier into the case'.

U.S. prosecutors knowingly presented false statements to a Canadian court to extradite Mr. Peltier to the U.S. The statements were signed by a woman who was forced by FBI agents to say she was an eyewitness to the shootings. The government has long since admitted that the woman was not present during the shootings.

The first appeal of Mr. Peltier's conviction occurred in 1977 before the Eighth Circuit Court of Appeals. In reference to the false affidavits discovered to have been used to extradite Leonard Peltier from Canada, Judge Donald Ross stated:
"But can't you see... that what happened happened in such a way that it gives some credence to the claim... that the United States is willing to resort to any tactic in order to bring somebody back to the United States from Canada? And if they are willing to do that, they must be willing to fabricate evidence as well."
In Cedar Rapids, Iowa—in light of the terror on the Pine Ridge Reservation during the previous three years, the history of misconduct on the part of the FBI in cases involving Indigenous activists, and the reckless behavior of the agents on June 26, 1975—a jury decided that Mr. Peltier's co-defendants were not guilty by reason of self-defense. Had Leonard been tried with his co-defendants, he also would have been acquitted.

Unhappy with the outcome of that trial, prosecutors set the stage for Mr. Peltier's conviction. His trial was inexplicably moved to an area known for its anti-Indian sentiment—Fargo, North Dakota. The trial judge had a reputation for ruling against Indians, and a juror is known to have made racist comments during Mr. Peltier's trial.

FBI documents prove that the prosecution went so far as to manufacture the so-called murder weapon. A ballistics test shows that the gun and the shell casings entered into evidence didn't match, but this fact was withheld from the jury. Mr. Peltier was convicted and sentenced to two consecutive life terms.

Prosecutor Lynn Crooks, during oral arguments before the Eighth Circuit Court of Appeals on October 15, 1985, stated:
"We can't prove who shot those agents."
The trial testimony on the Wichita AR-15 (claimed by the government to have been Leonard Peltier's weapon and to have caused their agents' fatal injuries) was the lynchpin of the prosecution's case. Allegedly, the Wichita AR-15 shell casing was found in the trunk of Agent Coler's vehicle. FBI documents released after Peltier's trial showed that two different FBI agents claimed to have discovered that shell casing—and on two different days. The judges of the Eighth Circuit Court of Appeals stated:
"There are only two alternatives... to the government's contention that the .223 casing was ejected into the trunk of Coler's car when the Wichita AR-15 was fired at the agents. One alternative is that the .223 casing was planted in the trunk of Coler's car either before its discovery by the investigating agents or by the agents who reported the discovery. The other alternative is that a non-matching casing was originally found in the trunk and sent to the FBI laboratory, only to be replaced by a matching casing when the importance of a match to the Wichita AR-15 became evident."
In 1986, in its ruling on Mr. Peltier's 1985 appeal, the Eighth Circuit of Appeals acknowledged that the United States government had used dishonest means to effect his conviction. The court concluded that the government withheld evidence from the defense favorable to Mr. Peltier, "which cast a strong doubt on the government's case," and that had this other evidence been brought forth, "there is a possibility that a jury would have acquitted Leonard Peltier."

The author of the Eighth Circuit Court's decision, Judge Gerald Heaney, in a letter supporting an award of Executive Clemency to Leonard Peltier, wrote:
"The United States government must share in the responsibility for the June 26 firefight... It appeared that the FBI was equally to blame for the shootout... the government’s role can properly be considered a mitigating circumstance… At some point, a healing process must begin... Favorable action by the President in the Leonard Peltier case would be an important step in this regard."
Before the Court of Appeals on November 9, 1992, Prosecutor Lynn Crooks again admitted:
"We don't know who shot those agents."
Also in 1992, Crooks demonstrated his predisposition to achieve a conviction even if based on fraudulent evidence when, in an interview conducted by Steve Kroft on the television show "West 57th Street," he said:
"It doesn't bother my conscience one bit... Doesn't bother my conscience one whit. I don't agree that there's anything wrong with that, and I can tell you, it don't bother my conscience if we did."
In 2002, an appeal was heard by the Eighth Circuit Court regarding a sentence reduction for Mr. Peltier. On December 12, 2002, the appellate court stated that the sentences imposed were themselves legal, but they "were imposed in violation of [Peltier's] due process rights because they were based on information that was false due to government misconduct."

As late as November 2003, the 10th Circuit Court of Appeals acknowledged that:
"…Much of the government’s behavior at the Pine Ridge Reservation and its prosecution of Leonard Peltier is to be condemned. The government withheld evidence. It intimidated witnesses. These facts are not disputed."
Although the courts have acknowledged evidence of government misconduct—including forcing witnesses to lie and hiding ballistics evidence reflecting his innocence—Mr. Peltier has been denied a new trial on a legal technicality.

Leonard Peltier applied for a commutation of sentence in 1993. The Department of Justice investigation was thorough and its recommendation well-considered. That application remained active until 2009. The fact that this application gathered dust in the Oval Office for over 15 years (according to the Office of the Inspector General, on average, petitions for commutation are decided in 1.57 years) clearly indicates that the application provided compelling reasons to grant an award of clemency to Leonard Peltier.

The facts of U.S. v Peltier (CR No. C77-3003) have not changed, Mr. Obama. You already have the means by which to make an informed decision in favor of Leonard Peltier.

We the People have waited a long time for justice for Leonard Peltier—nearly 36 years. On constitutional and overriding human rights and compassionate grounds, we await the fulfillment of the promise of justice for all—including the Indigenous Peoples of this hemisphere.

Show us, Mr. Obama, that the Bill of Rights isn't just another broken treaty.

Give effect to Judge Heaney's expression of support for an award of clemency to Mr. Peltier, a position based on his thorough review of Mr. Peltier's case.

On behalf of all of your constituents, signal disapproval of the particular investigative or prosecutorial practices that afforded only an unfair trial to Mr. Peltier and resulted in his wrongful conviction and imprisonment.

Respect the sovereignty of the Turtle Mountain Band of Chippewa Indians by transferring Mr. Peltier into his Nation's custody.

Send home a seriously ill and elderly man who can only receive adequate care from his family and Nation.

According to your oath of office—and your obligation to enforce, protect and defend the U.S. Constitution—you must act to right this wrong.

Free Leonard Peltier, Mr. Obama. It's time.


We the People

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