Leonard Peltier Trial: 1977

Defendant: Leonard Peltier
Crime Charged: Murder
Chief Defense Lawyers: Bruce Ellison, Lew Gurwitz, William Kuntsler, Elliott Taikeff
Chief Prosecutors: Lynn Crooks, Evan Hultman, Robert Sikma
Judge: Paul Benson
Place: Fargo, North Dakota
Date of Trial: March 16—
April 18, 1977
Verdict: Guilty
Sentence: Life imprisonment (two consecutive terms)

SIGNIFICANCE: Countless observers find in this trial a larger issue: the question of the continuing struggle between the native American Indian and the U.S. government, epitomized by this local skirmish between members of AIM (the American Indian Movement) and the FBI. In the waning days of President William Clinton's administration, supporters of Leonard Peltier urged the president to respond favorably to a petition for clemency, and current and retired FBI agents opposed it just as vociferously, but Clinton did not include Peltier among his many last-day-in-office pardons.

On June 25, 1975, Special Agents Ronald Williams and Jack R. Coler of the Federal Bureau of Investigation (FBI) searched the Pine Ridge, South Dakota, area for a 19-year-old Indian who was wanted on charges of theft and assault with a deadly weapon. Two Bureau of Indian Affairs (BIA) officers accompanied the FBI men.

Unsuccessful, they resumed the search the next day. Before noon, Williams radioed for help, saying he was near Oglala, a community 10 miles from Wounded Knee, and was being fired upon. FBI agents and BIA officers raced to Oglala. The gunfight that followed lasted all day. Coler and Williams were killed at point-blank range beside Williams' car. An Indian was also killed.

Arrest, Escape, Extradition

Some 300 FBI agents and BIA police, believing that 16 Indians had participated in the shootout, looked for evidence and arrested four men. One of them, Leonard Peltier, escaped and fled to Canada, where he appealed for asylum. His petition denied, he was extradited in December 1976. Meantime, two of the other men were tried in Cedar Rapids and acquitted on grounds of self-defense. Charges against the third were dropped.

As the trial of Peltier began on March 16, 1977, defense attorney Elliott Taikeff's opening statement set his own ground rules. "The only question is," he said, "did the defendant participate. That's what this trial is all about. The government doesn't have to prove first-degree murder, we concede first-degree murder."

A key prosecution witness was Mike Anderson, a youth who said he had watched the shootout from a rooftop. He testified he saw Peltier and two other men in Peltier's red-and-white van pursued by two FBI cars. He "saw everybody hop out" of their cars and move out of sight, then heard gunfire.

On cross-examination, Anderson admitted that, while he was jailed in Wichita on another matter since the shootout, an FBI agent had threatened to beat him up if he "didn't give him the answers that he wanted," that his Wichita charges had then been dropped, and that he had disagreements with Peltier, who had been trying to get him to stop drinking.

"It was the Agents …"

Another youth on the stand, prosecution witness Norman Brown, was reminded by prosecutor Evan Hultman that he had told the grand jury he had seen Peltier and the other three men near the death scene. "Are you trying to tell me I saw them down there?" he responded. "It was the agents who said I saw them." The reply was so confident that the defense welcomed it.

Prosecution witness Angie Long Visitor told the court she heard shots and saw the red-and-white van that she knew Peltier drove. It was parked near junked cars from which, according to both Anderson and Brown, Peltier and others had fired.

FBI Special Agent Frederick Coward testified that, with his rifle's telescopic sight, he saw Peltier running through the haze from the crime scene. The defense produced an expert on telescopic sights who said that, using the same sight at the same distance on a bright day, he would not be able to recognize someone he knew even facing him and standing still. Judge Paul Benson refused a defense request that he and the jury both test the sight.

Ballistics reports introduced by the prosecutors described a. 223 shell casing, presumably ejected from the killer's gun into the trunk of agent Coler's car, but could not link the shell precisely to one of the several AR-15 rifles used by both police and Indians in the shootout.

Two Royal Canadian Mounted Policemen who had arrested Peltier after he fled across the border concluded the prosecution testimony. One said the defendant told him he would have opened fire if he had seen them coming. The other said he asked Peltier if he killed the agents at Oglala and Peltier replied, "No, but I know who did."

Myrtle Poor Bear Irrelevant

With the prosecution resting after calling 25 witnesses during 15 days of evidence, the defense called Myrtle Poor Bear. A girlfriend and confidante of Peltier, she had been a known informant to the FBI on earlier investigations and had received FBI protection. Her affidavits describing the killings had been instrumental in the U.S. Justice Department's gaining the extradition of Peltier from Canada. Now, out of hearing of the jury, she testified as an "offer of proof" by the defense to show the judge why her testimony was relevant and should be heard by the jury. She signed the affidavits, she said, because two FBI men "told me that they were going to plan everything out and if I didn't do it I was going to get hurt." The judge found her false affidavits "irrelevant."

Finally, defense witnesses from the FBI office in Rapid City testified on confusing radio transmissions, during the shootout, about a red pickup truck or red-and-white pickup or red-and-white van and what kind of vehicle was parked where. Cross-examining, the prosecution blamed incompetent record keeping in the office for the inconsistencies.

Ruling before the defense summation, Judge Benson prevented Peltier's lawyers from disclosing the inconsistencies of the ballistics reports. He also prohibited the summations from using direct quotations from the trial's 5,000 pages of transcript, preventing the defense from citing specific discrepancies in prosecution testimony.

On April 18, 1977, after deliberating for six hours, the jury found Peltier guilty on two counts of murder in the first degree. Sentenced to life imprisonment on each count, he appealed. His extradition from Canada had been illegal, argued his attorneys, because it was based on false affidavits "obtained by the government through coercion and deceit and known by the government to be false." The appeal was denied by the U.S. Court of Appeals. The Supreme Court of the United States refused to hear the case.

Peltier escaped from the federal penitentiary at Marion, Illinois, in July 1978. Recaptured, he was tried on November 14, 1979, in U.S. District Court in Los Angeles. He was acquitted of conspiracy and assault but sentenced to five years for escape and two years for possession of a weapon by a felon, both sentences added to his life terms.

Appeals Denied

The year 1982 brought a motion for a new trial in U.S. District Court in Fargo. Judge Benson refused a motion that he remove himself from the case, then denied the new-trial motion. In October 1983, the U.S. Court of Appeals, however, hearing oral arguments for a new trial, reversed Benson's decision. Following the resulting evidentiary hearing in October 1984, the judge again refused a new trial.

The U.S. Court of Appeals again heard oral arguments in October 1985. Judge Gerald Heaney recalled that prosecutor Lynn Crooks had said Peltier was "the man who came down and killed those FBI agents in cold blood." To another judge's question, Crooks then said, "But we can't prove who shot those agents."

The appeal was denied on September 11, 1986. On October 5, 1987, the U.S. Supreme Court again refused to hear the case.

Peltier remains imprisoned.

—Bernard Ryan, Jr.

Suggestions for Further Reading

Churchill, Ward, and James Vander Wall. Agents of Repression: The FBI'S Secret Wars Against the Black Panther Party and the American Indian Movement. Cambridge, Mass.: South End Press, 1988.

—. The COINTELPRO Papers: Documents from the FBI's Secret Wars Against Domestic Dissent in the United States. Cambridge, Mass.: South End Press, 1990.

Matthiessen, Peter. In the Spirit of Crazy Horse. New York: Viking, 1991.

Messerschmidt, Jim. The Trial of Leonard Peltier. Boston: South End Press, 1983.

Peltier, Leonard. Prison Writings: My Life Is My Sun Dance. New York: St. Martin's Press, 1999.

Weyler, Rex. Blood of the Land: The Government and Corporate War Against the American Indian Movement. New York: Everest House, 1982.