The FBI Says It Still Opposes Leonard Peltier’s Freedom. Its Argument Is Full Of Holes.

It’s not every day that you ask the federal Office of the Pardon Attorney a routine question about the status of a prisoner’s petition for clemency and get a response from the FBI.

But that’s what happened when HuffPost recently asked for an update on a petition for clemency for Leonard Peltier, the Native American rights activist who has been in prison for 46 years without any evidence that he committed a crime and after a trial riddled with misconduct.

HuffPost has been reporting on Peltier’s imprisonment for months, and we emailed the Office of the Pardon Attorney late last month to see if a clemency petition filed in July by Peltier’s attorney has moved along in the review process. The FBI unexpectedly wrote back. It sent over a statement saying it strongly opposes clemency for Peltier:

The FBI remains resolute against the commutation of Leonard Peltier’s sentence for murdering FBI Special Agents Jack Coler and Ronald Williams at South Dakota’s Pine Ridge Indian Reservation in 1975. We must never forget or put aside that Peltier intentionally and mercilessly murdered these two young men and has never expressed remorse for his ruthless actions.

Peltier’s conviction, rightly and fairly obtained, still stands, and has withstood numerous appeals to multiple courts, including the U.S. Supreme Court. No amount of prison time changes the facts surrounding Coler and Williams’ deaths and commuting Peltier’s sentence now would only serve to diminish the brutality of his crime and the suffering of their surviving families and the FBI family.

Getting past the strangeness of the FBI responding to an email not directed to the FBI, it was something to get a statement from the FBI at all. The agency has previously declined comment to HuffPost about Peltier.

It was, after all, the FBI that fought to put Peltier in prison in the first place after two of its agents were killed in a 1975 shootout on Pine Ridge Reservation. Its new statement affirms that it still wants the now-ailing 77-year-old to stay there, despite decades of outcry from international human rights leaders, including Pope Francis, Nelson Mandela, Mother Teresa, the Dalai Lama, Desmond Tutu and Coretta Scott King. That’s in addition to appeals by U.S. Sens. Patrick Leahy (D-Vt.) and Brian Schatz (D-Hawaii), members of the U.S. House, Native American leaders, celebrities and others.

Opposition from the FBI remains the biggest obstacle to freedom for Peltier, who is considered by many to be America’s longest-serving political prisoner. The problem with the bureau’s argument for keeping Peltier in prison, though, is that it is full of holes.

Virtually every sentence of the FBI’s statement is outdated, misleading or flat-out wrong.

Take the first line: “The FBI remains resolute against the commutation of Leonard Peltier’s sentence for murdering FBI Special Agents Jack Coler and Ronald Williams at South Dakota’s Pine Ridge Indian Reservation in 1975.”

While it’s true that Peltier was convicted in 1977 of murdering two FBI agents, his legal team discovered in 1980, via a Freedom of Information Act request, that the FBI had intentionally withheld evidence showing that a ballistics expert had unequivocally ruled out Peltier’s gun as the murder weapon. This revelation struck at the heart of the U.S. government’s case.

After this bombshell, the U.S. attorney’s office changed its story. It dropped its argument that Peltier had murdered the agents and said he “aided and abetted” whoever did do it. But the U.S. government now claims it doesn’t know who killed those agents ― Peltier’s two other co-defendants were acquitted based on self-defense ― and there was never evidence that Peltier aided and abetted anyone. He has consistently maintained that though he was present at the shootout with dozens of others, he didn’t shoot anyone.

But the FBI was determined to put someone in prison after losing two agents. Peltier was the only guy left to pin the blame on. So he was sentenced to two consecutive life sentences despite there being no evidence he committed a crime.

The reason Peltier is still in prison after his conviction fell apart ― and the reason he didn’t get a new trial ― is because the standard for reviewing what’s called a Brady violation, or withholding evidence helpful to a person charged with a crime, was different in the 1970s than it is today. At the time, the standard was to gauge whether a jury would have come to a different conclusion based on the new evidence. When Peltier’s attorneys appealed his case to the U.S. Court of Appeals for the 8th Circuit in the mid-1980s, the court ruled it was possible that a jury could have come to a different conclusion but could not say definitively yes.

Today, the standard for reviewing a Brady violation is gauging whether a defendant was deprived of a fair trial because new evidence was excluded.

Kevin Sharp, Peltier’s pro bono attorney and a former federal judge appointed by President Barack Obama, said Peltier’s conviction never would have stuck under today’s system given that the new evidence in his case proved the murder weapon was not his.

“Oh, my God. This was their whole case,” Sharp said. “This would absolutely fall apart.”

These are the facts that make it obvious why the second sentence of the FBI’s statement is bogus: “We must never forget or put aside that Peltier intentionally and mercilessly murdered these two young men and has never expressed remorse for his ruthless actions.”

Peltier, again, is not in prison for “intentionally and mercilessly” killing anyone. Even the U.S. government dropped that argument decades ago. He is in prison for “aiding and abetting” whoever did shoot the FBI agents, an already baseless charge and one that came after a shockingly flawed trial. Prosecutors hid key evidence. The FBI threatened and coerced witnesses into lying. A juror admitted on the second day of the trial that she was biased against Native Americans, but she was allowed to stay on the jury anyway.

Justin Mazzola, deputy director for research at Amnesty International USA, which has devoted an entire campaign to Peltier’s release, said the FBI’s statement is unbelievably outdated and ignores key facts that have emerged since the 1970s.

“Forty-five years later, this statement does not even come close to aligning with what we now know about the environment and events leading up to and on Pine Ridge that fateful day, let alone all of the information we now know about the trial and case against Leonard Peltier,” Mazzola said.

“It denies the FBI’s own role in using perjured testimony to secure his extradition from Canada, the suppression of potentially exonerating evidence by the [Department of Justice] attorneys in his case,” he said. “Even the prosecutors subsequently admitted that they have no idea who shot the agents at point-blank range.”

As for the FBI claiming that Peltier “has never expressed remorse for his ruthless actions,” it makes a lot more sense if you remember that Peltier has maintained his innocence for the entire 46 years he’s been in prison.

The FBI also claims in its statement that Peltier’s conviction was “rightly and fairly obtained, still stands, and has withstood numerous appeals to multiple courts, including the U.S. Supreme Court.” This is misleading at best.

For starters, the Supreme Court never took up Peltier’s case. There was no need for it to. Peltier’s U.S. District Court conviction was already upheld by an appeals court, and there was no legal dispute for the Supreme Court to settle. That’s beside the fact that the Supreme Court only takes up about 100 or so cases a year out of the thousands it is asked to review.

It’s true that Peltier’s conviction was upheld by an appeals court. The 8th Circuit upheld it in 1986. But its reason for doing so goes back to that problematic 1970s standard for reviewing a Brady violation in a criminal conviction.

And in an extraordinary letter, five years later, the 8th Circuit judge who authored the decision to uphold Peltier’s conviction ended up urging clemency for him.

Judge Gerald Heaney said in his 1991 letter the FBI was at least partly responsible for the 1975 shootout, that the bureau was intentionally fueling tensions in the community as part of a broader effort to suppress the activities of the American Indian Movement, or AIM, a grassroots group of activists focused on drawing attention to federal treaty rights violations, discrimination and police brutality targeting Native Americans.

“The United States government must share in the responsibility for the June 26 firefight…. It appeared that the FBI was equally to blame for the shoot-out,” Heaney wrote to then-Sen. Daniel Inouye (D-Hawaii), the chairman of the Senate Indian Affairs Committee at the time.

“The government’s role can properly be considered a mitigating circumstance,” Heaney added. “At some point, a healing process must begin. Favorable action by the President in the Leonard Peltier case would be an important step in this regard.”

In an interview after his retirement in 1989, Heaney called his decision to uphold Peltier’s conviction “the most difficult I had to make in 22 years on the bench.”

The level of wrongdoing by the FBI and U.S. attorney’s office in Peltier’s case was so egregious that the U.S. Court of Appeals for the 10th Circuit, which didn’t even have jurisdiction over reviewing Peltier’s conviction, ripped the U.S. government’s handling of his case, too.

Peltier’s attorneys had filed an appeal before this court in 2003 on a different matter, relating to his request for a review of his parole being denied, and the judges went out of their way to condemn the way Peltier ended up in prison at all.

“Much of the government’s behavior at the Pine Ridge reservation and in its prosecution is to be condemned,” the judges said in their 3-0 decision. “The government withheld evidence. It intimidated witnesses. These facts are not disputed.”

The 10th Circuit did uphold Peltier’s parole being denied but only because the standard it had to go by was whether the parole commission’s decision was considered “arbitrary and capricious.” Because the parole commission had said it weighed the misconduct in Peltier’s trial, the court couldn’t say its decision to deny his parole was random.

Why was Peltier denied parole? The fact that he maintained his innocence when he was up for parole certainly helped keep him in prison.

Heaney’s remarkable change of heart in Peltier’s case is a lot like what happened with former U.S. Attorney James Reynolds. He initially helped put Peltier in prison in the 1970s. Now he’s out in front calling for Peltier’s clemency ― something his supporters think can, and must, finally happen with President Joe Biden in the White House.

“I write today from a position rare for a former prosecutor: to beseech you to commute the sentence of a man who I helped put behind bars,” Reynolds wrote in a stunning letter to Biden in July. “With time, and the benefit of hindsight, I have realized that the prosecution and continued incarceration of Mr. Peltier was and is unjust. We were not able to prove that Mr. Peltier personally committed any offense on the Pine Ridge Reservation.”

In his letter, first obtained by HuffPost in November, Reynolds pleads with the president to release Peltier as a step toward healing “the broken relationship” between Native Americans and the U.S. government.

“I urge you to chart a different path in the history of the government’s relationship with its Native people through a show of mercy rather than continued indifference,” he wrote. “I urge you to take a step towards healing a wound that I had a part in making.”

Mazzola said the statements by Reynolds and Heaney simply underscore that Peltier has been in prison for decades for a crime that no evidence shows he committee.

“While we understand the FBI’s determination to stand up for the two agents who tragically lost their lives, their time and efforts would be better served reviewing and analyzing their own role in [what] led up to the circumstances on the Pine Ridge reservation … rather than continuing to obstruct Leonard’s attempts to achieve his freedom and muddy the waters of what actually happened that day and at trial,” Mazzola said by email.

A White House spokesperson did not respond to a request for comment on what Biden knows about Peltier’s case and if he is considering granting clemency.

An FBI spokesperson did not respond to a request for comment on the misleading or inaccurate aspects of its statement about Peltier’s conviction or on the bureau’s misconduct in Peltier’s case.

The spokesperson also did not say why the FBI emailed HuffPost in response to a request directed to the pardon attorney’s office.