DENVER - A federal appeals court denied Leonard Peltier the right to a parole hearing before the scheduled time in 2008.
Peltier is serving two life sentences for the deaths of two FBI agents, Ronald Williams and Jack Coler on the Pine Ridge Reservation in 1975. Peltier attorneys argued before the 10th U.S. Circuit Court of Appeals that the government never proved beyond a reasonable doubt that Peltier pulled the trigger that killed the two agents.
"Justice is just not being served here. There is no case, if you read this stuff only an imbecile wouldn't see it. This is outrageous," said Barry Bachrach, Peltier's attorney.
Peltier's arguments for an immediate parole hearing is based partially on the fact that a parole commission in 1995 conducted a statutory interim hearing in which it admitted there was insufficient evidence to prove Peltier was the person who killed the two agents. The hearing officer recommended no change in Peltier's parole status. The belief of the officer and the commission was that even if Peltier aided and abetted the crime, that was sufficient to change his parole status.
Circumstances, such as an escape, armed robbery as a fugitive, possession of a fire arm, 11 incidents of institutional misconduct and first degree murder conviction prompted the parole commission to set a minimum of 188 months before Peltier would be eligible for a parole hearing. At the time of the first hearing, Peltier had served 204 months, and a full parole commission decided to increase the time to 200 months and agreed with the original commission decision.
The 1995 commission report denied Peltier a parole hearing, not because he may have pulled the trigger, but that if he didn't, he is guilty of aiding and abetting the killings. Peltier has been in prison more than 10 years over the normal time for a parole hearing.
Peltier supporters who span the country and into a number of foreign countries and include former government officials, claim he is held as a political prisoner.
In 1998 a second interim statutory hearing was held and the commission found no new evidence to change its earlier decision.
The smoking gun that convicted Peltier was actually a bullet casing and Bachrach claims it is the lynchpin to the case. The bullet case came from an AR-15 rifle that fired .223 caliber high velocity rounds. The government claimed the rifle that fired the bullet was linked to Peltier, but could not prove he actually fired the AR-15 in question.
The appellate court stated that a witness, a member of the American Indian Movement, who was present at the Jumping Bull Camp when the fire fight took place, claimed that Peltier fired an AR-15 rifle. Another witness said Peltier was seen at the agent's vehicle after the fire fight.
There was not witness that claimed Peltier pulled the trigger. Therefore Peltier upon appeal claimed FBI agents intimidated witnesses compromised their reliability. A lower court took that into consideration and determined that the witnesses asserted their testimony was truthful.
The 8th U.S. Circuit Court refused to overturn Peltier's conviction, and it was that decision and the court records that prompted the parole commission to deny a hearing until 2008. The Appellate Court agreed the commission was justified to make its decision based on those records.
"Mr. Peltier correctly asserts his convictions do not necessarily rest on the theory that he executed the FBI agents and that the government has conceded as much," the Appeals Court stated. But the government tried the case on alternative theories and if Peltier had not pulled the trigger, "It is possible the jury accepted only the aiding and abetting theory to convict Mr. Peltier of premeditated murder."
The Appeals court stated that it could not re-weigh the evidence as asked by Peltier to change the lengthy period before a parole hearing. "We can however, inquire into whether the Commission was rational in considering it," the court stated.
In doing so, the 10th Circuit Court said the commission erred in referring to the fire fight at Jumping Bull Camp as an ambush, because there was no indication that the participants from AIM were lying in wait for the two agents. The agents came onto the Pine Ridge Reservation in search of a van they considered to be driven by persons wanted in questioning for a robbery.
"Much of the government's behavior at the Pine Ridge Reservation and in its prosecution of Mr. Peltier is to be condemned. The government withheld evidence. It intimidated witnesses. These facts are not disputed," The court stated.
Peltier claimed those facts were proof enough as a mitigating factor that should allow for immediate consideration for parole.
"He may be correct," the court stated. "But whether the Parole Commission gave proper weight to this mitigating evidence is not a question we have authority to review," the court stated.
Again the court stated that its only purpose was to inquire if the commission was rational in drawing its previous conclusion of extending Peltier's hearing beyond the normal guidelines.
"Who has the authority if they don't? Can the government run roughshod over people and nobody reviews the case?" Bachrach asked.
Bachrach said he would not reveal the next move by Peltier, but said, "We are not going away, we will get justice."