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LEGAL UPDATE
July 14, 2003





APPEAL OF THE DENIAL OF LEONARD'S 1999 HABEAS CORPUS PETITION

Peltier attorneys are pursuing an appeal to the United States 10th Circuit Court of Appeals of the recent denial of Leonard Peltier's 1999 Habeas Corpus petition. Leonard seeks to overturn the U.S. Parole Commission's refusal to even consider him for parole until December 2008.

 

The Commission explained its outrageous departure from its own guidelines by saying that Leonard had been involved in an "ambush" of the two FBI agents, and had executed them at point blank range after the agents had been incapacitated.

The normal Parole Commission guideline for prisoners convicted of homicide offenses is 200+ months served. This meansil that Leonard should have been released from prison over one decade ago. The Commission, however, has repeatedly refused to consider setting a parole date until 2008 - when Leonard will have served almost double the normal time.

On appeal, Leonard's legal team will argue that the Commission erred in its decision. The Commission's argument was not supported by (1) Leonard's convictions, which the courts now accept as having been based on an aiding and abetting theory; (2) other 8th Circuit Court of Appeals decisions on post-conviction petitions; and (3) the body of evidence before the Commission. The Commission's position is further undermined by the evidence exonerating Leonard that the government improperly withheld at trial.

Oral arguments will be heard on September 19, 2003. Details will be released as they become available.

 

THE LPDC SEEKS PROCUREMENT OF WITHHELD DOCUMENTS

The Leonard Peltier Defense Committee (LPDC) has waged a long battle to acquire crucial documents withheld by the government concerning key aspects of Leonard's case. At Leonard's trial, the Federal Bureau of Investigation (FBI) provided only 3,500 documents to the defense team and steadfastly claimed that these were all that existed. Years later, through Freedom of Information Act (FOIA) actions, Peltier's legal team acquired 12,000 additional documents. These documents demonstrated that the FBI withheld crucial evidence that had not been presented at trial so as to wrongfully convict Leonard Peltier. Hiding behind the guise of "national security interests", the FBI continued to withhold an additional 60,000 documents which the LPDC has only recently succeeded in acquiring. The documents are currently under review. However, we have since discovered that the government is still withholding approximately 100,000 documents concerning Leonard's case.

After attempting for over a year to amicably acquire some of these documents, the legal team filed a FOIA complaint in the U.S. District Court for Massachusetts against the Executive Office of the United States Attorneys in November 2002. In response to the law suit, the legal team succeeded in acquiring 1,000 documents from North Dakota and South Dakota on February 6, 2003.

FOIA complaints also have been filed against the FBI and Central Intelligence Agency (CIA) in Minneapolis, Minnesota, and Washington, DC, respectively. In Minneapolis recently, the FBI claimed that Peltier failed to exhaust all administrative remedies to gain release of the 40,000 or so documents still withheld by the Minneapolis Field Office. The FBI's current strategy is an attempt to prevent these documents from being designated as historically significant and block the transfer of uncensored documents to the National Archives in Washington, DC, where they will be accessible by the public. According to Peltier's attorneys, the FBI's motion is frivolous. All administrative remedies have been exhausted, they say, and the FBI has already delayed three years. After 28, years, there is no legitimate reason for the FBI to continue to withhold these and other documents. The LPDC hopes that the Court will make a ruling on this matter soon.

Further, FOIA requests have been issued 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 as well.

 

CIVIL RIGHTS CASE

The LPDC continues to pursue the Civil Rights action. As expected, the FBI has moved to dismiss our case. We are preparing to strenuously oppose this motion and defeat it. The next step of the lawsuit will be discovery, a costly phase that will involve document acquisition and the taking of sworn depositions from those individuals named in the lawsuit.

 

A CHALLENGE UNDER THE SENTENCING REFORM ACT

Leonard has filed a habeas corpus petition in Washington, DC, that challenges the Parole Commission's failure to provide him with a parole date in direct violation of the Sentencing Reform Act, as amended by Congress in 1987. At that time, Congress sought to repeal all parole statutes, abolish parole, and eliminate the Parole Commission. The Parole Commission was ordered to give parole dates to all prisoners sentenced prior to November 1, 1987. As Leonard's parole was subject to regulations and standards in effect at the time of his alleged offense in 1975, he should have been immediately released. We will argue that the regulatory authority under which the Commission claims to act and its resulting decisions are nothing more than retrospective punishment and a violation of the ex post facto clause of the U.S. Constitution.

 

LEONARD PELTIER V. PAUL DEMAIN

On May 1, 2003, a defamation lawsuit was filed in the U.S District Court in Minneapolis, Minnesota, by Leonard Peltier against Paul DeMain, Managing Editor of News from Indian Country. The complaint alleges that DeMain has made false and defamatory statements that imply Peltier's involvement in the murder of Anna Mae Pictou Aquash, as well as stating as a matter of fact that Peltier was responsible for the shooting deaths of two FBI agents in 1975 - a claim that even the U.S. government admits it cannot prove. A trial by jury was requested. DeMain submitted his response to Peltier's claims in late June. A status conference is pending and Peltier's attorney hopes to depose key witnesses in the coming months.

By keeping Leonard's case constantly in the public eye, you play a critical role in securing his release. Send the message that this injustice cannot be forgotten or covered up by time. Write letters, make phone calls, and fax your representatives in Congress. Write letters to the editor of your local newspaper, hold educational forums, and distribute literature in your area to educate others. Donate to the LPDC. Keep our legal team's efforts alive.

© 2003 International Headquarters of the Leonard Peltier Defense Committee (LPDC)
PO Box 583, Lawrence, KS 66044-0583 USA
1-888-316-8437 (Toll Free) . 1-785-842-5774 (Local) . 1-785-842-5796 (Fax)
E-mail: lpdc@freeleonardpeltier.org

 

Source: Message from the "Leonard Peltier Defense Committee"
<lpdc@freeleonardpeltier.org> posted via ndn-aim email list.
Reprinted under Fair Use U.S. Code: Title 17, Chapter 1 , Section 107


Legal Team Update: July 14, 2003

 

Previous Legal Updates, Documents and Court Filings

Legal Team Updates and Briefs Filed

Previous Legal Update: January 30, 2003
Legal Update: November 26, 2002
Legal Update: November 2, 2002


6/20/03

On the Tenth Circuit Court of Appeals

FOIA Requests and Responses

5/29/03

FOIA RELATED CORRESPONDENCE:
(1) FOIA Denial of Appeal from the U.S. Department of Justice, on the failure of FBI Buffalo Field Office to respond to request for access to records concerning Leonard Peltier.

(2) Hearing Date Confirmation
for June 12, 2003 at 3:30 PM,
a continuation of the FOIA Hearing held March 4, 2003.

 

HEARING CANCELLED

(3) FBI Objects to Request for June Hearing


Other Recent FOIA Responses: National Archive Response to Allegation Regarding Destruction of FBI Field Office Files Relating to Leonard Peltier, and FBI Declaration Re: Time Allocations for Release of Documents Reclassified As Historical Documentation - (May 25, 2003)

Recent FOIA Releases from FBI: Activities of the FBI concerning the Wounded Knee Legal Defense/Offense Committee Facilities, Rapid City, South Dakota - (May 15, 2003)

FOIA REQUESTS and RESPONSES; Web Posted April 30, 2003


LEGAL TEAM UPDATE: January 30, 2003

Legal Team Summary: Leonard Peltier's Appeal to the United States Court of Appeals for the Tenth Circuit (Jan. 2003)

10th Circuit Summary Reply Brief - Printer Friendly

WORD File - 10th Circuit Summary Reply Brief

Summary Reply Brief filed on January 30, 2003 in the U.S. Court of Appeals for the Tenth Circuit

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Brief filed in the United States Court of Appeals for the Tenth Circuit

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Letter to U.S. Department of Justice Regarding FOIA Appeal (Michael Kuzma)


Against the Executive Office of United States Attorneys

A FOIA Complaint was Filed Friday, Nov. 1, 2002 in the United States District Court for the District of Massachusetts by Leonard Peltier's attorneys, Barry A. Bachrach and Michael Kuzma. The complaint was filed under the Freedom of Information Act (FOIA), seeking the disclosure and release of agency records improperly withheld from Plaintiff by Defendant Executive Office of United States Attorneys (EOUSA).

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Against the CIA

On Tuesday, Nov. 5, 2002, another FOIA Complaint was filed in Washington, DC against the CIA by Carl Nadler, Michael Kuzma and Barry Bachrach who are Counsel of Record.

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PDF File Format

Against the FBI

A FOIA Complaint was Filed Friday, Nov. 15, 2002 in the United States District Court for the District of Minnesota against the FBI by Bruce Ellison, Michael Kuzma and Barry Bachrach who are Counsel of Record.

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