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2000-12-11

As Clinton Contemplates Clemency for Leonard Peltier, a Debate Between the FBI and Defense Attorneys

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Around 2,000 protesters rallied yesterday in front of the United Nations in New York City, calling for President Bill Clinton to grant executive clemency to Leonard Peltier. The Native American activist has been in prison for almost a quarter of a century after being convicted of killing two FBI agents on the Pine Ridge reservation in South Dakota. He has always maintained his innocence. [includes rush transcript]

Among those who rallied were some of Peltier’s children and grandchildren, as well as dozens of people from Pine Ridge. Also speaking on his behalf were his lawyers and writer Alice Walker.

In an exclusive interview with Pacifica’s WBAI last month, President Clinton said that he would give Peltier’s clemency an "honest look-see." FBI director Louis Freeh countered with a letter to Clinton asking him not to free Peltier. The FBI is also planning to hold a rally this Friday in front of the White House opposing clemency for Peltier.

Tape:

  • President Bill Clinton, speaking during an interview with Amy Goodman.

Guests:

  • James Burrus, Assistant Special Agent in charge of the FBI’s Minneapolis division.
  • John Sennett, President of the FBI Agents Association.
  • Jennifer Harbury, attorney for Leonard Peltier.
  • Bruce Ellison, Attorney for Leonard Peltier.

Related links:

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Around 2,000 protesters rallied yesterday across the street from the United Nations in New York City on International Human Rights Day, calling on President Clinton to grant executive clemency to Leonard Peltier. The Native American activist has been in prison for almost a quarter of a century after being convicted of killing two FBI agents on the Pine Ridge reservation in [South] Dakota. He has always maintained his innocence.

Among those who rallied were some of his grandchildren, as well as dozens of people who flew in from the Pine Ridge reservation. Also speaking on his behalf were his lawyers and writer Alice Walker.

In an interview that President Clinton did on WBAI, Pacifica station, last month, and the first time he addressed the issue publicly, President Clinton said he is weighing executive clemency for Leonard Peltier.

AMY GOODMAN: President Clinton, since it’s rare to get you on the phone, let me ask you another question. And that is, what is your position on granting Leonard Peltier, the Native American activist, executive clemency?

PRESIDENT BILL CLINTON: Well, I don’t have a position I can announce yet. I think if — I believe there is a new application for him in there. And when I have time, after the election’s over, I’m going to review all of the remaining executive clemency applications and, you know, see what the merits dictate. I will try to do what I think the right thing to do is based on the evidence. And I’ve never had the time actually to sit down myself and review that case. I know it’s very important to a lot of people, maybe on both sides of the issue. And I think I owe it to them to give it an honest looksee. So part of my responsibilities in the last ten weeks of office after the election will be to review the requests for pardons and executive clemencies and give them a fair hearing. And I pledge to do that.

AMY GOODMAN: And you will give an answer in his case?

PRESIDENT BILL CLINTON: Oh, yeah. I’ll decide, one way or the other.

AMY GOODMAN: President Clinton on Election Day on WBAI, Pacifica Radio.

Well, the FBI is planning to hold a rally this Friday in front of the White House opposing clemency for Peltier. Today, a debate between lawyers for Leonard Peltier — Jennifer Harbury and Bruce Ellison — and two FBI agents — James Burrus, assistant special agent in charge of the FBI’s Minneapolis Division, and John Sennett, president of the FBI Agents Association.

John Sennett, let’s begin with you. Why are you opposing clemency for Leonard Peltier?

JOHN SENNETT: Well, a couple of points that I’d like to clarify right at the start is that the FBI is not holding a rally on Friday of this week. The FBI, as a governmental agency, doesn’t hold rallies. It’ll be a gathering of FBI employees who are using vacation time, taking some of their vacation time, to rally on their own initiative.

AMY GOODMAN: Right. The reason I said it that way is because when we called the FBI for you to come on, for different FBI agents to come on, they were the ones who faxed us the press release about the rally.

JOHN SENNETT: Right, right. Well, they’re sharing information, of course. But I just wanted to — in case some of your listeners were under the impression that this was an official action of a government agency, I wanted to clarify that point.

And another point that I want to clarify is that we are not — we are directing our gathering at the President, of course, because the decision to give clemency or not is his alone. But we’re not presuming that the President is inclined to do that at this point in time. We’re simply trying to counter as best we can what we regard as an ill-founded and longstanding effort on the part of Leonard Peltier’s supporters to encourage the President to grant clemency. So we’re trying to be a counterbalance to what we think is an incorrect advocacy of Leonard Peltier.

AMY GOODMAN: Right. Now, Janet Reno, the Attorney General, rebuked Louis Freeh for issuing the statement opposing executive clemency for Leonard Peltier. But let me ask James Burrus, your office prosecuted Leonard Peltier, the FBI’s Minneapolis division. What are the main arguments against him? What did you think were the most powerful points proving his guilt in the killing of the two FBI agents?

JAMES BURRUS: Well, first of all, the FBI, of course, we do the investigations. The US Attorney’s office does the prosecution. But the facts of Leonard Peltier’s case and the way that we decide guilt or innocence in the United States of America is through the jury system. We have an opportunity to put on our witnesses and our forensic evidence and the case that we make. We have a duty beyond a reasonable doubt to prove this, along with our partners in the US Attorney’s office. The defense, likewise, has an opportunity to examine witnesses, to give facts of their own, to give alternative versions, and to present their case, as they see fit. And our position has always been that the jury has come to the right decision and that every appeals court that has ever heard this has never given his side or the defense side an ounce of believability.

Clearly, Mr. Peltier had the opportunity twenty-five years ago, when he was walking across a field in South Dakota, 200 yards — it wasn’t that he shot the agents in a shootout. He — clearly the agents were alive. The wounds were not fatal. Mr. Peltier and his friends could have left the area at that point, and the agents would still be alive today to enjoy their grandkids and their kids. Mr. Peltier crossed 200 yards of prairie to execute these two men, along with his buddies, in cold blood. I mean, there’s just no question about that.

The compelling case to me are the shell casings that entered the trunk of the car that match Mr. Peltier’s weapons. No matter what the defense said, I mean, there’s no question about that. Every court of appeal that’s ever looked at that has determined that that’s the case. Mr. Peltier’s flight clearly is an issue. Mr. Peltier is a violent man. He has a violent background. He shot it out with an Oregon trooper when he was confronted in Oregon after shooting the agents. He escaped from prison after he was already in prison. I mean, all these things add up. There’s so many different things that point to his guilt that it would take me the entire sixty minutes to simply go through them all.

AMY GOODMAN: We’re also joined by Jennifer Harbury, one of the attorneys for Leonard Peltier. In a nutshell, can you summarize the case and the circumstances around it?

JENNIFER HARBURY: I’d be happy to. I think the first thing we want to say is that, of course, no one’s suggesting that the shooting, whether intentional or accidental, of any human being is something that we would, you know, say is a good thing. But for any person to be put in prison in this country, they have to be tried by a court with a full and fair hearing and with untainted and unfabricated evidence.

What we feel went wrong in the trial of Leonard Peltier are the following basic points. Number one, he was extradited from Canada. He had fled to Canada, not because he believed he was guilty, but because —

AMY GOODMAN: I want to go back even before that.

JENNIFER HARBURY: Mm-hmm?

AMY GOODMAN: Explain what happened on the day that the two FBI agents were killed.

JENNIFER HARBURY: OK. This was the period called the "Reign of Terror" on Pine Ridge reservation. It began right after the occupation of Wounded Knee, where traditionalists, Lakota traditionalists, men, women, children and elders, had occupied the town to protest abuses by the government. And the US military had responded with literally military force, firing hundreds of thousands of rounds against the people inside.

Error then began. When the White House promised investigations, people returned to their homes. Instead, the FBI appeared in massive numbers, instead of the promised investigations. And the local vigilante group, which worked very closely with the FBI, is literally called the GOON squad, Guardians of the Oglala Nation, then began a reign of repression against all of the AIM supporters and sympathizers and traditionalists on the reservation.

AMY GOODMAN: AIM, being the American Indian Movement.

JENNIFER HARBURY: Houses were burned, cars were run off the road, and sixty-four AIM supporters and members were literally murdered with virtually no repercussions by the FBI or any other enforcement agency.

In the midst of this Reign of Terror, the Jumping Bull elders became very frightened for their own safety and asked an AIM contingent to camp out on their ranch. And Leonard Peltier was sent there with a very small group of people, most of them in their teens. I think the average age was fifteen or sixteen. An eleven-year-old was also present.

On June the 26th, '75, in the midst of this Reign of Terror, two FBI agents in an unmarked car in plainclothes chased a red pickup truck onto the ranch, and a shootout began between the two vehicles. Literally children were caught in the crossfire. Everybody thought that the GOON squads had come to kill them, which was very reasonable under those conditions. Everybody began to scream, "Help! Help! We're under attack! We’re under assault!" And everybody returned fire.

At the end of the shootout, the two agents were indeed dead, as was a young Native man named Joseph Stuntz, who has never been — that death has never been investigated in any way or considered to be a murder, although he was also shot through the head by sniper fire.

At that point, the entire ranch was encircled. The red pickup truck was able to jump the police lines and escaped shortly after the shooting and was never identified or intercepted. And the vigilante groups and the FBI and SWAT patrol cars and militias encircled the ranch and poured gunfire down on all of the remaining AIM people inside, again most of whom were minors. The government was once again shooting at children.

Leonard saved all of their lives by leading them through an underground pipeline out — literally under the SWAT patrol cars out the other side through a hail of bullets to safety with other Native people on the ranch outraged, shooting into the air and throughout the reservation to distract the FBI so that the children would not be killed.

Leonard then fled to Canada, believing he would never receive a fair trial. His two friends, the other adult AIM leaders on the ranch that day, were immediately arrested and put on trial for the murder of the two agents. They were acquitted. The jury found there was no evidence that they fired the pointblank bullets that did kill the two agents. And they were also — the jury also ruled that simply returning fire under those conditions was a matter of self-defense.

Then we come to Leonard’s trial. As I say, he had fled to Canada because he believed he could not receive a fair trial. That was well grounded. The FBI was being severely rebuked by many judges in that region in that era for coercing witnesses and otherwise tampering with prosecutions against AIM members in that region. In the Wounded Knee siege prosecution, for example, the charges were thrown out of the court altogether with the judge literally shouting, "The waters of justice have been polluted! These charges are dismissed!"

Leonard was brought back from Canada in chains after a local woman named Myrtle Poor Bear signed an affidavit saying, "I’m his girlfriend. He did those executions right in front of me." She then went to the judge and said, "I’ve never met Mr. Peltier. I wasn’t even on the ranch. I signed after the FBI terrorized me for days and said they would take my children away if I didn’t." She was not allowed to tell the jury about this.

The jury, unlike all the other juries in similar prosecutions against AIM leaders then, were not allowed to hear about the other cases, where the FBI had been rebuked for tampering with the evidence and tampering with witnesses. So they could properly evaluate the three fifteen-year-olds who were dragged in by the FBI and who had literally been tied to chairs, denied their right to talk to their attorney, and very, very terrorized, and who later admitted their entire testimonies had been really heavily influenced by the terror and coercion they had received.

The worst part is that the ballistic test issue, the ballistics expert for the FBI said that "This is Mr. Peltier’s gun. This is the bullet casing we found near the bodies. And we could not do the best test, because this gun was damaged in a fire, so we did a much less good test, and it shows that the casing and gun match."

Years later, in the Freedom of Information Act, they were able to find that expert’s own records. He had done the better ballistics test. He could do it. He did do it. And he put in his own report, "This bullet casing does not come from that gun. It’s a different firing pin test." That evidence had been withheld from the jury.

The prosecution also said again and again there was no other rifle except Peltier’s that could have inflicted that injury. They now admit there were many.

Lastly, their own radio intercepts had always said that the two FBI agents were chasing a red pickup truck. Again, after the trial, it became very, very clear that it had always been a red pickup truck. The FBI director had said the day after the shootout they would find that red pickup truck. They stopped red pickup trucks for — anywhere near the reservation for weeks trying to locate it. At Leonard’s trial, they had a problem. Leonard didn’t drive a red pickup truck. So they changed that to — it would be an orange and white van that Leonard was sometimes seen driving and claimed that the FBI had chased Leonard onto the ranch and that he was the one who had started the shootout.

With all of these errors, one would think he would have gotten a new trial. And they did, in fact, demand a new trial, at which the US attorneys began to sheepishly admit that, in fact, no one knows who fired those fatal shots. Leonard’s basically in the same posture as his two friends who were acquitted twenty-five years ago. No one knows who fired those two shots, those two fatal shots. But Leonard did not get a new trial, because of a legal technicality. The judges even wrote in their opinion that but for that FBI conduct, the jury might have ruled differently. And two jury members did later tell a private investigator that that ballistic test would have had serious impact on their decision.

AMY GOODMAN: James Burrus, assistant special agent in charge of the FBI’s Minneapolis division, your response?

JAMES BURRUS: Well, that’s an awful lot of stuff to go through. You know, first of all, let’s start with the Reign of Terror. The Wounded Knee situation was two years removed from the murder of the agents. The FBI in its jurisdiction has always been responsible for prosecuting cases, for gathering evidence, and for addressing crimes on the reservation. Just because Wounded Knee was taken over doesn’t change our jurisdiction and our need to go down and investigate cases.

You know, the allegation about sixty-four murders that just came from the defense attorney, we have addressed those. We finally, after years of begging, got a list. You know, who are you talking about? Who are those sixty-four people that were killed? The sixty-four people that were killed, one of them, the names that were given to us, was an eighteen-month-old infant. The allegation was Michelle Tobacco was an eighteen-month-old infant. The defense says she was murdered — an AIM supporter murdered without any type of investigation at all. And it’s just not true. She died — the infant died as a result of her mom falling on her. I mean, these are the type of fabrications that continue to come up.

And if you’d like, I’d be happy to send you a copy of a booklet that we recently did investigating every one of the murders. There were fifty-seven names that were ultimately given to us. We conducted a thorough review of all of our files, and we published a booklet that shows that we — number one, we already know about the murders that are not solved on the reservation. And we continue to work on those every day, including today.

The second thing I’d like to say is, you know, the defense attorney argues that this — there were massive numbers of FBI agents that poured onto the reservation after Wounded Knee. And that’s just not true. At the most, we had twelve agents on the reservation at the time the agents were killed. I don’t think twelve is a massive number to cover a huge section of South Dakota where we have jurisdiction, where Congress has given us jurisdiction. I mean, we can’t walk away, just because Wounded Knee happened. We still have to do our jobs. The people of Pine Ridge expect that.

The FBI and the link from — between the FBI and the GOONs is simply a fabrication that’s convenient for the defense attorneys to bring up. There’s absolutely no evidence that the FBI — the FBI gathers its information from so many different sources. And we don’t turn people away because they sound unreasonable or —- what we do is we take the information and we evaluate it as best we can, and we try to corroborate it. We work with anybody and everybody that’s willing to work with us, in terms of coming in, giving us information. The idea that the FBI -—

AMY GOODMAN: James Burrus, we have to break for stations to identify themselves. When we come back, I want you to address the issue of the bullet casing and the test done on that. And we’re also going to hear from Leonard Peltier’s other attorney, Bruce Ellison.

You are listening to Pacifica Radio’s Democracy Now!, our guests John Sennett and James Burrus of the FBI and Jennifer Harbury and Bruce Ellison, the attorneys for Leonard Peltier. President Clinton is now weighing executive clemency for the Native American activist. We’ll be back in a minute.

[break]

AMY GOODMAN: You’re listening to Pacifica Radio’s Democracy Now! I’m Amy Goodman, as we continue with this debate on the case of Leonard Peltier. On June 26, 1975, two FBI agents, Jack Coler and Ron Williams, entered the Jumping Bull Ranch in South Dakota. The FBI says they were seeking to arrest a young Native American man, believed, they said, to be seen riding a red pickup truck. A large number of AIM supporters were camping on the property at the time. The more-than-thirty men, women and children on the property were surrounded by FBI agents, SWAT team members, BIA, police, local posse members, barely escaped through a hail of bullets.

When the gunfight ended, a Native American named Joe Stuntz lay dead. His killing was never investigated, although the FBI will ask if they did investigate that case. The two FBI agents, Coler and Williams, were also dead, wounded in the gunfight and then shot pointblank through the head. It was Leonard Peltier who was ultimately convicted of their killing.

And today we are weighing his case, our guests again James Burrus and John Sennett of the FBI, James Burrus, assistant special agent in charge of the FBI’s Minneapolis division — they investigated the case — John Sennett, president of the FBI Agents Assocation; Jennifer Harbury and Bruce Ellison are the attorneys for Leonard Peltier.

James Burrus, you were going through the case. Your comment on the ballistics test? Jennifer Harbury just said that a test was actually done, could not trace it to Leonard Peltier’s gun, could not prove it came from his gun. Your response to that?

JAMES BURRUS: Yeah, first of all, I think you’ve got the facts of the case completely wrong. There was no surrounded by FBI, SWAT team. These two guys were on their own investigating a case up near Oglala and ran — it was a bad case of circumstances. They didn’t even know Leonard was on the ranch. They ran into Leonard, who was wanted for the murder of a Milwaukee — attempted murder of a Milwaukee police officer. They ran into this guy. And, I mean, really, there were just two of them. I mean, it’s not a whole form of SWAT team and a shootout.

Let’s talk about the bullet casing for a minute. First of all, when Leonard executed — or when Leonard and the people that were down there with him executed these agents, one of the shell casings from Leonard’s weapon ejected from his weapon and went — ended up in the wheel well of Jack Coler’s car. That shell casing was later found, and tests were done.

There’s several types of tests that you can do to shell casings. The first is a firing pin test that’s — it’s one of many that you can do. The second when the bullet is pushed into the weapon, there is a rod that pushes it in. And then when it’s fired, there’s a rod that extracts it. So there is a second mark on the bullet. It’s an extractor mark.

The extractor mark was tested in the weapon that Leonard Peltier carried, and it matched. I mean, the Eighth Circuit has said conclusively, when all is said and done, that bullet matched that weapon, and that weapon was put in Leonard Peltier’s hands by witnesses at a trial. That’s pure and simple why the jury believed it, why they found it credible, and why every court that has ever looked at this has shown that.

The defense attorneys can argue all day long about this or that. It’s all been argued before appeals courts, and it’s all been confirmed that Leonard is the man.

AMY GOODMAN: Bruce Ellison, Leonard Peltier attorney.

BRUCE ELLISON: Well, one of the things about the suppressed ballistics evidence was the court of appeals concluded that it cast a strong doubt on the government’s case. And the standard by the Supreme Court was that if it casts a doubt, you get a new trial. So right away, we knew that something was wrong when Leonard Peltier did not get a new trial.

Amnesty International has called since 1981 for an independent inquiry as to how the criminal justice system has been utilized for political purposes by the FBI, citing the Peltier case as an example.

And just to touch on a couple of points of Agent Burrus, to say that people were not surrounded is just simply not true. By the time that people ran up from the camp, they were receiving automatic and semiautomatic weapons fire from all directions. And this came from kids. It came from other people who were there that day.

Agent Burrus forgot to mention that although Leonard Peltier was wanted at that time for attempted murder of a police officer in Milwaukee, he was found not guilty when the jury got to hear all the evidence, including from the officer’s ex-girlfriend, who testified that when her boyfriend came home that night, he was waving a picture of Leonard Peltier and talking about how he was helping the FBI catch a big one.

In terms of the Reign of Terror, I’d like to just give one example. There was a young AIM member by the name of Byron DeSersa. After Dick Wilson lost the election — Dick Wilson was the tribal chairman and the head of the GOON squad — Byron DeSersa was traveling with three friends towards the community of Wanblee, when a caravan of GOON squad members passed them. They opened up on Byron DeSersa’s vehicle, wounding him so badly that he bled to death, although he was a quarter of a mile away from an aid station.

The FBI — and this was a case I investigated. The FBI, we turned over witnesses to them. They gave a deal to one of the assassins. And the deal was that this man would receive a five-year sentence if he testified that the — Dick Wilson’s son and another GOON squad leader acted in self-defense when they fired on a car of unarmed people. So this is the kind of way that the government investigated.

I remember that Reign of Terror. I remember the fear on children’s eyes and mothers’ eyes and elders’ eyes and how they would go to sleep at night not knowing whether bullet fire would go through their walls of their homes on any given evening. People were afraid to walk outside their homes. The death rate that was on Pine Ridge, the white paper that Agent Burrus talks about, we’ve always appreciated how twenty-five years after these homicides, the FBI was so willing to investigate this particular matter.

It was a terrifying situation if you were a traditional person. I took the place of an attorney, Roger Finzel, who was stopped at gunpoint and nearly killed by the GOON squad. The government’s response was to prosecute the GOONs for misdemeanors and do everything that they could to make sure that they got off.

We’re talking about a situation that needs to be seriously investigated. And I would encourage Agent Burrus, that if he believes that we have no evidence, to join us in our call for a congressional investigation, as Amnesty International has called for, as the US Commission on Civil Rights has called for.

JAMES BURRUS: Bruce, there’s just nothing to back that up.

AMY GOODMAN: James Burrus.

JAMES BURRUS: I mean, what you’re saying — what you’re asking us to do is to investigate cases that we’ve already investigated. The FBI doesn’t make deals. The deals are done by the US Attorney’s Office and approved by a judge. So, you know, saying that we did this and we did that, I mean, there’s a whole system in place to ensure that justice is done, including the appointment of independent people, judges, to review this entire matter. So I’m just not willing to do that at this point.

BRUCE ELLISON: I think independent inquiry would be actually wonderfully called for. We’d like a congressional committee with subpoena power. And then we could see.

We have a lot of documentation. We have the document that shows clearly that once this firefight happened, the criminal investigation was placed under the command of Richard Held, who was the head of the domestic security section of the FBI. Now, how can you say that this is not a political case, when such matters happen?

Many of the documents that we’ve gotten under the Freedom of Information Act have large black deletions on them with national security exemptions. This is a highly political case, and it is something that needs to be seriously investigated, because the FBI was complicit in suppressing dissent in this country, using what can only be considered to be terrorism.

JAMES BURRUS: Bruce, did you know that —

AMY GOODMAN: Well, I would like to bring Leonard Peltier into the conversation. I can’t, though, as he is at Leavenworth prison. He was in lockdown all weekend, along with the rest of the prisoners there. But maybe I could play just a clip of what he had to say in an interview we did with him a couple of months ago.

LEONARD PELTIER: My name is Leonard Peltier. I’m a Lakota and Chippewa Native American. I am currently serving two life sentences for the deaths of two FBI agents.

AMY GOODMAN: Did you kill the FBI agents?

LEONARD PELTIER: No, I did not.

AMY GOODMAN: That was Leonard Peltier a few months ago, denying that he killed the two FBI agents.

John Sennett, president of the FBI Agents Association, is it fair to say this is one of the — or the most important case for the FBI right now, as you mobilize for your — for as the FBI agents mobilize for the rally on Friday?

JOHN SENNETT: Well, it is, in the sense that we do in fact take this personally. There are a lot of people in federal penitentiaries who have and are — will continue to apply for presidential clemency. And the FBI doesn’t respond to that one way or another. My — the Agents Association, of which I’m president, doesn’t react to that one way or another. This is different. We do take this personally, and for all of the reasons that Mr. Burrus just went through.

One of the things is, as I’ve been listening to Ms. Harbury and Mr. Ellison talk, it’s apparent that they cannot separate the few seconds, few minutes, in which the killings of Agents Coler and Williams took place from the larger historical context that they feel is integral to the whole situation. And we reject that altogether. Leonard Peltier is in prison, because of bullets that he fired into the heads of two FBI agents within a matter of seconds. It’s got nothing to do with political or other forms of repression that they allege to have occurred over decades. And some of the Peltier supporters will even take this discussion all the way back to Christopher Columbus as the person who initiated a reign of terror that continues to this day. And that’s just absurd from our point of view.

AMY GOODMAN: Jennifer Harbury?

JENNIFER HARBURY: I think the bottom line, as I’ve said, is that even the United States Attorney now admits over and over again in different transcripts at different hearings that no one knows who fired those shots into the heads of the FBI agents. So I think we really need to stick to that position here as the bright light.

JOHN SENNETT: That’s kind of a —

JENNIFER HARBURY: In addition, I would just like to make very clear that in the twenty-five years that Mr. Peltier has been behind bars, he’s been receiving awards for his human rights work. This man sponsors Native American scholarship programs. He has donated his art work to contribute to substance abuse programs and to battered women’s centers. He’s adopted children in Central America. He serves on advisory boards to different humanitarian and charitable organizations. He’s done remarkable work and has been recognized anywhere.

AMY GOODMAN: What about the issue of parole?

JENNIFER HARBURY: He’s way overdue for parole. He should have been paroled years ago. In addition, he’s done all of this remarkable work, which should have made him more than eligible. He’s —

AMY GOODMAN: What do you mean, he should’ve been paroled years ago?

JENNIFER HARBURY: If he was any other prisoner, he’s served more than the normal amount of years necessary to be released on parole, especially given his remarkable good deeds and his failing health. He has — I was at the last hearing last June of this year. And despite all of this incredible evidence that was presented on his behalf and despite the fact that he’s way overdue time-wise for parole, even under Justice Department standards and guidelines, he was denied on the grounds that, quote, "He won’t accept responsibility for the crime he’s committed." In short, unless he admits to killing the agents, he will not be allowed to be released on parole. In short, if he doesn’t admit to a crime he did not commit, he cannot walk free, and he’ll die in prison.

AMY GOODMAN: James Burrus, your comment about the prosecutors making the statement that, in fact, they could not prove that it — in appeals cases, they could not prove that it was Leonard Peltier who pulled the trigger in the pointblank range executions of these two FBI agents.

JAMES BURRUS: Both of the attorneys know that the standard here — you don’t — if you’ve got a guy who’s driving a car and two other guys go into the bank and rob the bank and come back out and they kill a guard as a result, all three of them under our system are liable, just as all three of them are equally liable for the crime. You don’t have — the government doesn’t have to prove the elements of that particular crime in order to show that that this crime — number one, this crime occurred. Number two, we can’t tell. We don’t have videotape. We don’t have, you know, something that definitively shows Leonard Peltier was the one — bam, bam — that did these two guys, although there’s plenty of evidence for the jury to have come to that conclusion. There’s plenty of evidence.

Leonard’s weapon was more than likely the one used. When you shoot somebody at pointblank range, the shell disintegrates pretty quick, the actual bullet fragments. But what they can do is say this type of weapon was used, and that type of weapon was the only one down around the agents. Moreover, the shell casing that flipped into the back of the trunk was from Leonard’s gun.

Now, do we have videotape that shows him shooting the agents? No. Do we know he was down there? Yes. Can we put him down there? Yes. And by the legal standards that we have, that’s beyond a reasonable doubt, and that’s why Leonard was convicted. And every court has agreed with us.

AMY GOODMAN: Bruce Ellison.

BRUCE ELLISON: Well, every court has agreed, but that’s been part of the problem, and that’s why proceedings were fundamentally flawed and why clemency is so appropriate here.

We’ve already dealt with the ballistics evidence. Firing pin tests, which the FBI suppressed, conclusively show that that weapon didn’t fire that casing.

But when we talking about an aiding-and-abetting theory, we talk about being involved in the firefight. The two co-defendants were found not guilty on self-defense grounds. The difference was the jury in that case was able to hear about the climate of fear and terror on the reservation and concluded that the FBI played a major role in that and therefore concluded that when people were responding to gunfire, that they were arguably acting in self-defense. The jury foreman in that case said had Leonard Peltier not been extradited — or had not been in Canada and had been tried with Butler and Robideau, he, too, would have been found not guilty.

And so, really, what we’re talking about is a man’s inability to defend against a charge of aiding and abetting, because the government was able to secure a different judge who changed all the rulings and kept all this evidence out.

AMY GOODMAN: We have to wrap up this discussion today, but I wanted to invite everyone back tomorrow for one more segment. One of the issues we didn’t address, Jennifer Harbury, you filed ethics claims against the FBI.

JENNIFER HARBURY: A number of FBI officials, yes, we filed that last June.

AMY GOODMAN: And we haven’t gotten to that. I didn’t want to rush through this debate, and so I wanted to ask everyone, we’ll deal with this after the program. If you can join us again tomorrow, this is a very important case. Again, a major rally in New York yesterday outside of the United Nations. More than 2,000 people attended. The FBI Agents Association planning a rally in front of the White House on Friday.

If people want to get contact information on both sides to get more information, as they tell people about the continuation of the discussion tomorrow, where can they go? Let’s start with John Sennett, president of the FBI Agents Association.

JOHN SENNETT: Well, there’s — one of our retired FBI agents on his own initiative has put up a website — gosh, www.no — Jim, do you know the name of this web site?

JAMES BURRUS: It’s www.noparolepeltier.com, I think..

JOHN SENNETT: Noparolepeltier.com, that’s correct.

AMY GOODMAN: And the Leonard Peltier Defense Committee?

JENNIFER HARBURY: The main number for the Leonard Peltier Defense Committee is (785) 842-5774.

AMY GOODMAN: And the website?

JENNIFER HARBURY: I believe it’s www.freepeltier.com.

AMY GOODMAN: Dot-com or -org?

BRUCE ELLISON: Dot-org.

AMY GOODMAN: Dot-org. It is — that brings us to the end of the program — Jennifer Harbury and Bruce Ellison, attorneys for Leonard Peltier, James Burrus and John Sennett with the Federal Bureau of Investigation.

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