Peltier Legal Update: Constitutional Violations
On March 3, 2005, the Peltier attorneys filed a Motion to Summarily Proceed on Leonard's Petition for Habeas Corpus & to establish bail. http://www.peltiersupport.org/Docs/Historical/PostConviction/MotionToProceed.html .
As supporters may recall, on August 6, 2002, a Petition for a Writ of Habeas Corpus was submitted to the United States District Court in the District of Columbia.
This pending appeal concerns the unconstitutional misapplication of the Sentencing Reform Act of 1984 (under which prisoners sentenced "under the old system" were to be issued release dates no later than October 1989) by the U.S. Parole Commission.
On February 20, 2004, a Reply Brief on the government's Motion to Transfer (to the U.S. District Court in the District of Kansas) was filed.
In March, the DC District Court granted the government's Motion to Transfer.
There has been no movement on this appeal for over a year.
Withheld Documents
Currently, there is a Freedom of Information Act (FOIA) lawsuit pending in the U.S. District Court for the Western District of New York.
In response to a FOIA claim, the Buffalo Field Office of the Federal Bureau of Investigation (FBI) released 797 pages in full or in part.
However, 15 pages are being withheld in their entirety.
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 damage or cause serious damage to national security & 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 & strain diplomatic relations between the United States & a foreign government.
The catalyst for the Buffalo case is a heavily excised 1975 Teletype message from the Buffalo Field Office to then FBI Director Clarence M. Kelley that indicates that an informant was trying to infiltrate Peltier's defense effort.
Despite current FBI denials, it should be noted that Kelley himself testified during the trial of Peltier's two co-defendants that the government had used informants against the American Indian Movement.
Proof of a legal team infiltrator could be grounds for a new trial or an outright reversal.
On August 11, 2004, the Peltier attorneys filed a Memorandum of Law in Opposition to the government's Motion for Summary Judgment in the Buffalo case.
During oral arguments, on September 13, U.S. District Judge William M. Skretny reserved decision on the action.
However, the judge took issue with the FBI's claims that it has acted in good faith in the processing of FOIA requests & is innocent of any impropriety, citing that two federal appeals courts have criticized the FBI's conduct in the Peltier case.
One such panel of judges said the government's decision to withhold evidence should be "condemned."
Judge Skretny has yet to hand down a decision.
However, the law does not require a federal judge to render a decision within a specific period of time. http://www.peltiersupport.org/Newsroom/BuffaloHearing09132004.html
We also are waiting on U.S. District Judge Donovan W. Frank's ruling on our appeal of Magistrate Judge Susan Richard Nelson's decision to deny our request for expedited processing of Leonard's FOIA request to the FBI Minneapolis field office.
The records in this FBI field office are of particular interest as Minneapolis was the Office of Origin for the RESMURS investigation.
This FBI field office maintains 90,000 pages of material responsive to Leonard's FOIA request.
On December 31, 2004, the Legal Team received 5,112 pages of material from the FBI Minneapolis field office.
Unfortunately, these records consisted solely of trial transcripts to which the Legal Team already has access.
However, the FBI released an additional 5,167 pages of records from its Minneapolis field office on February 25, 2005.
The Legal Team is presently reviewing this information.
Illegal Imprisonment
On March 9, 2005, a Motion for Expedited Hearing was filed concerning the December 15, 2004, Motion to Correct an Illegal Sentence filed in the U.S. District Court in the District of North Dakota. http://www.peltiersupport.org/Docs/Historical/PostConviction/MotionToExpedite.html
The federal jurisdiction conferred by the statutes under which Peltier was convicted & sentenced depended on the location of the alleged crime, not against whom the crime was allegedly committed.
The statutes required that the acts in question take place "within the special maritime & territorial jurisdiction of the United States".
Because the acts occurred on the Pine Ridge Indian Reservation, which is neither "within the special maritime [or] territorial jurisdiction of the United States," Mr. Peltier was convicted & sentenced for crimes over which the U.S. District Court had no jurisdiction.
Peltier is calling on the Federal Rules of Criminal Procedure in effect at the time of his sentencing - specifically, Rule 35(a) - that provided that the Court could correct an illegal sentence at any time for any offense committed before November 1, 1997.
In a major civil lawsuit filed on September 2, 2004, in Washington, DC, the Peltier attorneys claim that U.S. Department of Justice officials have knowingly violated the Sentencing Reform Act of 1984 (and its amendments) & illegally extended Peltier's prison term by 12 years or more.
The Sentencing Reform Act (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 & the Parole Commission was abolished.
At the heart of the suit is the refusal of the government 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 Commission would cease to exist.
On December 7, 1987, Congress enacted Public Law 100-182 which amended the SRA; repealed, in Section 2, the release criteria established by the original section 235(b)(3); & restored the release criteria under 18 U.S.C. 4206.
This amendment did not restore the Parole Commission or remove its obligation to establish mandatory release dates, with sufficient time for appeal, by October 11, 1989.
These changes to the law also applied only to crimes committed after the law was amended on December 7, 1987.
The amendment simply did not apply to the Leonard Peltier or some 6,000 other "old system" prisoners still held by the U.S. Bureau of Prisons today.
After it had technically ceased to exist, the Parole Commission claimed it needed more time to complete its work.
Congress inexplicably granted a number of after-the-fact extensions, the first in 1990 & the latest in 2002.
The suit claims these extensions were legally invalid & therefore inapplicable because, at the time they were made, the Parole Commission had already been abolished.
Mr. Peltier should have been given his certain release date by October 11, 1989, minus sufficient time to exhaust appeals.
Had the Parole Commission followed the congressional mandate, Peltier would have been released over 12 years ago.
Lacking in any statutory authority, the U.S. Parole Commission in fact illegally extended Leonard's term of imprisonment.
The failure of the Parole Commission to give a release date to Peltier violated the ex post facto, Bill of Attainder, & Due Process clauses of the U.S. Constitution.
The Peltier attorneys demanded a permanent injunction preventing further misapplication of the SRA & its amendments by the government; enforcement of the rights created by the original section 235(b)(3); &, due to irreparable injuries suffered by Peltier, compensatory & punitive damages as determined by a jury.
On September 17, stating the claim appeared to be a habeas corpus petition, the court issued an Order to Show Cause why the case shouldn't be transferred to the U.S. District Court of Kansas.
On October 12, the legal team submitted its response & filed the final complaint.
Nevertheless, the court recently ordered the claim transferred to the U.S. District Court of Kansas & the U.S. Court of Appeals for the District of Columbia affirmed the District Court's decision.
On March 15, 2005, the Peltier Legal Team filed a Petition for a Writ of Mandamus from the U.S. Supreme Court to reverse the appellate court's ruling. http://www.peltiersupport.org/Docs/Historical/PostConviction/Mandamus03162005.html
In a related action, an Emergency Grievance was submitted to the Bureau of Prisons in early March 2005 to address claims of illegal detention resulting in personal injuries &/or irreparable harm.
No response from prison authorities within a 48-hour period will result in court action. http://www.peltiersupport.org/Docs/Historical/PostConviction/Emergency.html
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