[Ppnews] Leonard Peltier: Legal Update

PPnews at freedomarchives.org PPnews at freedomarchives.org
Tue Mar 15 14:14:20 EST 2005

March 15, 2005

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.

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.

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

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.

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.


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