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Tenth Circuit Court of Appeals Update

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 has already served over 320 months (already over 11 years beyond the normal guideline time for release as established by the Commission’s regulations), 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.

Indeed, in 1995 when Leonard appeared for an interim statutory parole hearing before the same hearing examiner who had presided over Leonard’s initial parole proceeding, the hearing officer this time “concluded after a review of the additional exculpatory evidence that a preponderance finding that Peltier actually executed the agents cannot be made.” He was moved by the government’s statements, especially those by Assistant United States Attorney Lynn Crooks who had “acknowledged that the government does not know, insofar as having the evidence to sustain a conviction in Court that Leonard Peltier fired the fatal bullets into the agents.” The hearing examiner thus conceded that the 15-year reconsideration decision in 1993 was based on the mistaken belief that Peltier’s convictions had “included a specific or directed finding by the jury that Peltier had fired the fatal shots into the agents causing their deaths.”

Dissatisfied with these conclusions, the Commission then appointed a second hearing officer (who was not even present at the statutory interim hearing, and who disagreed with the first officer’s recommendation. The Commission then reaffirmed the second officer’s recommendation and reaffirmed that it would not reconsider Leonard for parole until December 2008.

One of the most telling factors is the government’s changing of position as Leonard’s case has evolved and as further evidence of government misconduct is unearthed. In 1985, during oral argument before the Eighth Circuit on Leonard’s appeal from his first habeas petition, the government argued that it did not need to prove that Leonard executed the agents at close range and admitted that “we can’t prove who shot those agents.” In 1990, Leonard brought a second habeas petition and the government again stressed that Leonard’s conviction did not rest on his participating in the close range execution of the agents: “We knew who participated, we knew who was murdered, but we did not know quote unquote who shot the agents;” The facts available did not give us direct evidence as to who did the coup-de-grace. They simply didn’t&ldots;.We argued inferences and we certainly argued that strongly. But that’s not the same thing as saying that we had direct evidence by any one witness that Peltier was the one that squeezed off the final rounds.”

Thus, as the evidence linking Leonard to shooting the agents began to evaporate, and as it became more and more clear that the evidence relied upon by the government was manufactured after the fact, the government more and more changed its theory from claiming that Leonard was the shooter to upholding Leonard’s convictions on the theory of aiding and abetting. It was totally improper for the Commission to rely simply on the convictions and the published decisions to support its conclusion that Leonard killed the agents at close range for the purpose of extending Leonard’s consideration for parole to twice the normal federal guidelines.

Finally, the Commission (and the United States District Court for the District of Kansas which affirmed the Commission) failed adequately to consider the impact of the critical exculpatory evidence which was improperly withheld by the government and which completely undermined the facts relied upon by the Commission to establish that Leonard shot the two FBI agents at close range. The improperly withheld evidence established that the government manufactured evidence and gutted the government’s manufactured case that Leonard executed the two agents at point blank range. Based on data and reports obtained from the FBI under FOIA requests, Leonard’s legal team discovered that the government had withheld exculpatory evidence which unequivocally ruled out the so-called Wichita AR-15(which was purportedly Leonard’s) as the murder weapon. More specifically, the legal team discovered a memorandum dated October 2,1975 by a ballistics expert which ruled out the Wichita AR-15(the murder gun purportedly used by Leonard). In addition, the legal team discovered other data suppressed by the FBI which struck at the heart of the government’s case and the Commission’s findings which were upheld by the District Court.

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.

Source: Attorney's legal update posted by Harvey Arden via public information lists on June 20, 2003.