Leonard Peltier's Legal Team Update: January 30, 2003
Greetings Friends and Supporters: The legal team is still working hard on multiple fronts to ameliorate the ongoing injustice Leonard has suffered for all these years. Below is an update indicating what the legal team is doing at this time. The FOIA legal action has already begun to yield documents that had been previously withheld. Your continued support is essential to our success. Please note the letter writing action request in the legal update below to read how you can help right now.
We look forward to your continued support and participation. Thank you.
In Solidarity, LPDC
THE APPEAL OF THE DENIAL OF LEONARD'S 1999 HABEAS PETITION CHALLENGING DENIAL OF PAROLE:
Peltier attorneys Carl Nadler and Barry Bachrach are pursuing an appeal to the U.S. Court of Appeals for the Tenth Circuit of the recent denial of Leonard's 1999 Habeas Corpus. The Court took nearly three years to finally address the issues raised by Leonard. The legal team feels that the issues on appeal are compelling and the appeal will be pressed vigorously. This is a high watermark of Leonard's legal proceedings and presents Leonard with a very good chance to acquire freedom in the near future.
By his appeal to the United States Court of Appeals for the Tenth Circuit, Leonard seeks to overturn the United States Parole Commission’s ("Commission") refusal to consider Leonard for parole until December 2008. The normal federal guidelines for parole of prisoners convicted of similar crimes is 200+months. Though Leonard will have served over 325 months (already over 11 years beyond the normal guideline time for release as established by the Commission’s regulations) by the time of the hearing, the Commission refused even to consider establishing a parole date until Leonard will have served almost double the normal guideline time.
The Commission explained its dramatic and outrageous departure from the established guidelines based on its sole finding that Leonard was involved in an "ambush" of the two FBI agents, and executed them at point blank range after they were incapacitated. The appeal turns on whether there exists a rational basis for the Commission’s basis for extending Leonard’s parole so far beyond the normal guideline. On appeal, Leonard’s legal team strongly contends that the Commission erred because its stated reason (1) is not supported by Leonard’s convictions or the Eighth Circuit decisions addressing post-conviction petitions, (2) is not supported by the evidence before the Commission, and (3) is undermined by the material exculpatory evidence the government improperly withheld at Leonard’s trial.
In sum, under normal federal guidelines, Leonard is long overdue for release on parole. There is no basis for the Commission to not release Leonard on parole and certainly no basis for it to refuse to even consider release until December 2008. This appeal can correct that injustice and set Leonard free. Now is the time to provide Leonard with the support to make this come to fruition. Justice is long overdue in Leonard’s case and now is the time for a panel of judges of the Tenth Circuit to look at Leonard’s case and at least ameliorate the unfair and unjust treatment Leonard has received to date. Ameliorate is all that can be done at this point, as an innocent man has been punished for nearly 27 years by a corrupt and unyielding system. Leonard, however, needs your support to ensure that the courts finally conduct a fair review of his case.
LEONARD PELTIER'S LEGAL TEAM CONTINUES TO PURSUE THE VARIOUS GOVERNMENT AGENCIES TO PROCURE DOCUMENTS WITHHELD:
The government still is admittedly withholding approximately 100 thousand more pages of documents, which are being aggressively pursued by the legal team. After attempting for over a year to amicably acquire these documents which are being withheld by various government agencies concerning Leonard's case, Peltier Attorneys Michael Kuzma and Barry Bachrach filed a Freedom of Information Act (FOIA) complaint in the United States District Court for Massachusetts against the Executive Office of United States Attorneys on November 1, 2002 to require them to produce documents being withheld. Michael Kuzma, Barry Bachrach, Bruce Ellison and Carl Nadler have also filed FOIA complaints against the FBI and CIA in Minneapolis, Minnesota, and Washington, D.C., respectively. With respect to the documents sought from the U.S. Attorneys, the legal team will receive documents from the U.S. Attorney's Office from North Dakota on February 6, 2003, as well as additional documents. The legal team is filing motions to require the CIA and FBI to produce so-called Vaughn indices. These indices will require the FBI and CIA to identify the documents being withheld and the reasons for their withholding the documents. A motion is scheduled in the FBI case in Minneapolis for March 4, 2003, to determine whether and how soon the FBI will be required to file a Vaughn Index. We anticipate that these indices will be very revealing and demonstrate what the government has been concealing all these years.
In addition, Barry Bachrach and Michael Kuzma have issued FOIA requests to 35 FBI field offices, which had not previously been served with FOIA requests. The legal team expects to find pertinent information in these documents unless they have not been destroyed or concealed by the agencies.
ACTION NEEDED:
The legal team suggests a letter writing campaign to write letters to the editors of local newspapers to help support efforts in acquiring these documents. Click on the link below for a sample letter provided by the legal team.
Sample Letter to the Editor: http://www.freepeltier.org/sample_pfv013003.htm
The legal team is firmly convinced that this effort will yield documents which the government previously withheld on a wrongful basis and which will compel Leonard's relief. We must obtain these withheld documents and then garner the means and support to expeditiously review them to find information to support Leonard's freedom.
HISTORY OF THE GOVERNMENT'S WITHHOLDING EXCULPATORY DOCUMENTS IN THE PELTIER CASE:
This is part of a long battle to acquire documents the government has been withholding. The United States government has engaged in a long history of withholding crucial documents concerning key aspects of Leonard's case. At Leonard's 1976 trial, the FBI produced approximately 3,500 documents and indicated that these were all the documents that existed. History proves this to be absolutely false. After Leonard was convicted, Peltier's legal team acquired, through Freedom of Information Act requests, 12,000 documents that the FBI had previously withheld. These documents unequivocally demonstrated that the FBI withheld crucial exculpatory evidence which was not presented at trial and that the FBI presented perjurious testimony to wrongfully and unfairly obtain Leonard's conviction. The FBI, under the guise of "national security interests," purportedly withheld 6,000 documents, stating that that was the extent of the documents in the Peltier file. Since that time, the legal defense team has discovered that the government is still withholding approximately 100,000 documents concerning Leonard's case.
CIVIL RIGHTS UPDATE:
Bernard Kleinman continues to pursue the Civil Rights action. The government is acting particularly egregiously in attempting to avoid service of process. In spite of the adoption of rules of federal civil procedure, which seek to make it easy for parties to be served without the incurring of unnecessary expenses, the government refused to follow its own rules and has attempted to make it difficult for Leonard's legal team to achieve service of process. Despite the roadblocks set up by the government, service of process is underway. We hope to have all parties served within the next two weeks so that the government will be forced to address the allegations, which involve outrageous and extreme behavior by current and former FBI agents. As expected, the FBI has moved to dismiss. We expect to strenuously oppose this and defeat it. The next phase of the lawsuit will involve discovery which will be costly as it involves document acquisition, paralegal assistance, and taking depositions from FBI agents under oath.
CHALLENGE UNDER THE SENTENCING REFORM ACT:
Carl Nadler and Barry Bachrach are presently representing Leonard in a habeas petition pending in Washington, D.C., which challenges the parole commission's failure to provide Leonard with a parole date despite the laws enacted as part of the sentencing reform act by Congress in 1984.
Finally the legal team has many other avenues it is pursuing to seek Leonard's long overdue freedom. Because of the importance to keep these tactics confidential, the information presented in this update is all that can be revealed now. However, it is the legal team's firm opinion that there are still many avenues of relief, which should ultimately open the prison doors for Leonard. More than ever the legal team and Leonard need your support to keep these avenues alive. The legal team will keep you informed as to how you all can help. Your help is so important to Leonard's ultimate freedom from the unjust imprisonment he has faced all these years.
RECENT LEGAL BRIEFS, MEMORANDUMS & MOTIONS FILED:
Brief filed in the United States Court of Appeals for the Tenth Circuit Monday, December 09, 2002 http://www.freepeltier.org/10th_circuit_brief.htm
Summary Reply Brief filed on January 30, 2003 in the U.S. Court of Appeals for the Tenth Circuit Thursday, January 30, 2003 http://www.freepeltier.org/10th_reply_brief.htm
The legal team has filed motions to require the CIA and FBI to produce so-called Vaughn indices http://www.freepeltier.org/legal_update013003.htm#vaughn_motions
Until Freedom Is Won! The New Leonard Peltier Justice Campaign
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