[IPSM] Leonard Peltier LEGAL UPDATE: December 22, 2004

[Stefan Christoff]

---------- Forwarded message ----------
Date: Wed, 22 Dec 2004 22:47:32 -0500
From: Hombre Ana <mateare at worldnet.att.net>


A service of the Peltier Legal Team.  For a full overview of the Peltier
case, we recommend that you use this Update as a supplement to The Case:
Statement of Fact.

1.  Constitutional Violations
2.  Withheld Documents
3.  Illegal Imprisonment

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1.  Constitutional Violations

On August 6, 2002, a Joint Petition for a Writ of Habeas Corpus was
submitted to the U.S. 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 (Re the
government's Motion to Transfer Petition for Writ of Habeas Corpus [to the
U.S. District Court in the District of Kansas]) was filed.  In March, the
U.S.  District Court in the District of Columbia granted the government's
Motion to Transfer.  (SEE Reply Brief.)

2.  Withheld Documents

At the time of Leonard Peltier's 1977 trial, the government turned over to
defense attorneys roughly 3,500 pages of material on the investigation of
the June 26, 1975, shoot-out (referred to by the FBI as RESMUR).  In the
early 1980s, a request by Peltier's attorneys to the FBI under the Freedom
of Information Act (FOIA) led to the discovery of 18,000 additional pages
related to the case.  Twelve thousand pages were released in full or in
part at that time.  Six thousand pages were withheld in their entirety on
"national security"  grounds.  In 2001, the Peltier attorneys sent a new
round of requests to every FBI Field Office.  It was discovered that the
FBI still has 142,579 pages of material that have never been made
available to Leonard Peltier or his attorneys.  The Minneapolis Field
Office alone has 90,000 pages of data.  The information contained therein
is particularly important because Minneapolis was the Field Office in
which the RESMUR investigation was based.

Currently, there is a 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 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.  (SEE Memorandum.)

3.  Illegal Imprisonment

On December 15, 2004, the Peltier attorneys filed a Motion to Correct an
Illegal Sentence in the U.S. District Court in the District of North
Dakota.

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.

The recent Supreme Court decision that ruled the sentencing guidelines in
Washington State unconstitutional & threw state & federal courts into
turmoil (Blakely v. Washington 124 S.Ct.  2531, 2004) also is cited in the
brief submitted to the District Court on Peltier's behalf.  In that case,
the judge made "findings" independent of the jury & added 37 months to the
53-month sentence stipulated by the state guidelines thereby using a
looser legal standard - "preponderance of the evidence" - than the "beyond
a reasonable doubt" that juries use in criminal cases.  The Supreme Court
ruled that this practice violates the Sixth Amendment right to a trial by
jury.  Any facts used by a judge to justify a sentence longer than that
recommended by the guidelines must be based on facts the jury had when it
convicted the defendant.

Not only did the court not have jurisdiction in this case, but the trial
judge inflicted punishment - two consecutive life terms - that the jury's
verdict alone did not allow.  The jury did not find all the facts "which
the law makes essential to the punishment".  According to the Supreme
Court, the judge exceeded his proper authority.  (SEE Motion & Brief.)

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 law suit filed on September 2, 2004, in Washington, DC, the
Peltier attorneys claim that United States 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 defendants named in the law suit include the U.S. Parole Commission &
individuals who have served on the Commission during the past two decades;
Attorney General John Ashcroft & former Attorneys General Edwin Meese,
Richard Thornburgh, William Barr, & Janet Reno; & the Director of the
Bureau of Prisons, Harley Lappin, as well as former directors J. Michael
Quinlan & Kathleen Hawk Sawyer.

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 to the 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 have 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.  (SEE Complaint.)

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.

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