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Leonard Peltier Has COVID; His Lawyer — an Ex-Federal Judge — Calls for Native Leader to Be Freed

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Jailed 77-year-old Native American activist Leonard Peltier has tested positive for COVID-19 less than a week after describing his prison conditions as a “torture chamber.” Peltier was convicted of aiding and abetting the killing of two FBI agents during a shootout on South Dakota’s Pine Ridge Reservation in 1975 while a member of the American Indian Movement. He has long maintained his innocence and is considered by Amnesty International as a political prisoner. We speak with his lawyer and former federal judge Kevin Sharp, who says Peltier’s case was riddled with misconduct, including witness intimidation and withholding exculpatory evidence. Sharp argues Peltier’s health, age and unfair trial make him the perfect candidate for executive clemency. “The legal remedies are no longer available,” says Sharp on Peltier’s case. “Now it’s time for the [Bureau of Prisons] and the president of the United States to fix this and send him home.”

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

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman.

The jailed Native American activist Leonard Peltier has tested positive for COVID, less than a week after describing his prison as a “torture chamber.” Peltier, who suffers from multiple health conditions, says he and others held at the Coleman Federal Correctional Complex in Florida have yet to receive their COVID booster shots and describes worsening neglect and uncertainty. In a statement, Leonard Peltier writes, “Left alone and without attention is like a torture chamber for the sick and old.”

The 77-year-old Leonard Peltier is a Lakota and Chippewa Native American from the state of North Dakota. He’s been jailed for 46 years. In 1977, he was convicted of killing two FBI agents during a shootout on South Dakota’s Pine Ridge Indian Reservation in 1975. At the time, Peltier was a member of AIM, the American Indian Movement. He has always maintained his innocence. Amnesty International considers him a political prisoner who was not granted a fair trial.

The 1975 shootout occurred two years after AIM occupied the village of Wounded Knee for 71 days. The occupation of Wounded Knee is considered the beginning of what Oglala people refer to as the “reign of terror.” During that time, some 64 Native Americans were murdered. Most of them had ties to AIM. Their deaths went uninvestigated by the FBI.

Over the past 25 years, Indigenous and human rights groups lobbied both President Clinton and President Obama to pardon Leonard Peltier, but they refused. Now President Biden is facing pressure to do so. On Wednesday, Senator Brian Schatz, who’s chair of the Senate Committee on Indian Affairs, wrote a letter to Biden urging him to commute Peltier’s sentence.

We’re joined now by Leonard Peltier’s lawyer, Kevin Sharp. Kevin Sharp is a former federal judge who resigned from the bench to fight against mandatory minimum laws. He’s joining us from Nashville, Tennessee.

Welcome to Democracy Now! Do we call you Judge Sharp even though you have left your judgeship?

KEVIN SHARP: You know, it’s one of the few things I get to hang onto, the title.

AMY GOODMAN: So, Judge Sharp, first, if you can tell us about Leonard’s condition? And then talk about why you took on his case.

KEVIN SHARP: Well, the condition part is tough, because it’s difficult to get information out of the BOP, the Bureau of Prisons. There are — he tested positive on Friday, and so there were people there that I was able to talk to. Over the weekend, you have a very skeleton crew, and there’s really not much information I could get, although they would talk to me briefly, except to say he’s doing OK and has not had to have been moved yet. So, so far, so good. As soon as this segment is over, I’m going to call the prison again, and I should be able to get a hold of his counselor. But that’s where we are. He has COVID. He’s feeling really poorly. This is the information I had on Friday. And he’s been quarantined. And so, that’s kind of where we are.

AMY GOODMAN: So, Judge Sharp, talk about why you took on Leonard Peltier’s case.

KEVIN SHARP: You know, that’s interesting, because when I stepped down from the bench, I started working on clemency for a young man that I had sentenced to life in prison. I thought that — it was a mandatory minimum sentence, very unfair. And I started working on clemency for him. And ultimately we were able to get clemency from President Trump. But Kim Kardashian got involved in that case. And with Kim’s involvement came a lot of media attention.

That media attention caught the attention of a woman, Willie Nelson’s ex-wife, Connie Nelson, in Texas, who asked someone to send me all of the information on Leonard’s case. I sat down to read the stacks, just reams of information on Leonard’s case, not really coming at it with any preconceived notion. I didn’t know much about it. I was only 12 years old when the events happened, so I didn’t know much. And I came at this looking at it from the viewpoint of a federal judge. And what I saw was shocking. The constitutional violations just continued to stack up, and I was really outraged that this man was still in prison, knowing what everyone now knew. And so, with that, I agreed to take on this case pro bono.

AMY GOODMAN: So, Kevin Sharp, I sort of laid out the case of Leonard Peltier. But can you, after reviewing it, looking at all the documents, knowing what you know as a judge and a lawyer, lay out Leonard Peltier’s case? What most shocked you about it? And then, what are your grounds now for asking for the commutation of his sentence?

KEVIN SHARP: Well, they relate to each other. The things that most shocked me was the level of outright misconduct by the U.S. Attorney’s Office, the then-U.S. Attorney’s Office, and the then-FBI, what they did in the form of intimidating and threatening witnesses, hiding exculpatory evidence, suborning perjury. And all of that is known. When Leonard appealed all of these issues over the years, some of it was known, some of it wasn’t, but the standards were different. And if this case were brought up today, no question: This verdict gets overturned.

And ultimately, even the U.S. Attorney’s Office had to admit that they don’t know who killed the agents. And so, we’re sitting here with the prosecutor saying, “We don’t know who did it, but, sure, life sentence for this man seems fine.” As a matter of fact, in the early '90s, 60 Minutes did a segment on this, and they talked to the assistant U.S. attorney who tried the case, and specifically asked him about perjury of one of the witnesses, a woman named Myrtle Poor Bear. And initially, the AUSA said, “I didn't know it was perjured testimony,” but then he looks in the camera and says, “But so what if I did? It doesn’t bother my conscience one whit.” And at that, I’m looking at that and going, they knew it, and he’s admitting it here on national television.

What they did was outrageous and completely ignoring the Constitution of the United States so that they could get a conviction. Part of the reason for that, that kind of fervor to get a conviction at any cost, is because his co-defendants were acquitted based on self-defense. So he’s really their last chance at getting a conviction. And so, it was a conviction at any cost.

Now, once it was discovered, one of the things they had done was withhold exculpatory evidence. That’s evidence that tends to show the person is not guilty of the crime you’re accusing them of committing. And that exculpatory evidence in this case was a ballistics test that they had testified did not exist, when in fact it did exist. And it wasn’t discovered for years afterwards. So, by withholding that ballistics test, it deprived Mr. Peltier of a fair trial. The Constitution requires that that be shown. So, you know, these things just stack up, and that’s what so outraged me.

AMY GOODMAN: I want to go back to Election Day 2000. I had a chance to interview then-President Bill Clinton. He had called our radio station, Pacifica station WBAI, in an attempt to get out the vote for Hillary Clinton for Senate and Al Gore for president. So I used the opportunity to ask him about the case of 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 — 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 is over, I’m going to review all 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.

AMY GOODMAN: So, I now want to turn to Leonard Peltier in his on words. Shortly after I interviewed President Clinton in 2000, I spoke to Leonard when he was being held at the Leavenworth federal penitentiary in Kansas.

LEONARD PELTIER: My name is Leonard Peltier. I’m a Lakota and Chippewa Native American from the state of North Dakota. I am currently serving two life sentences for the deaths of two FBI agents in Leavenworth United States Penitentiary.

AMY GOODMAN: Did you kill the FBI agents?

LEONARD PELTIER: No, I did not. No.

AMY GOODMAN: Maybe we could go back to that day that these FBI agents were killed, and you could tell us what happened.

LEONARD PELTIER: Well, at that time, there was a — what is known as today as a region of terror going on against traditional people from the so-called progressives under a tribal chairman named Dick Wilson, who was very corrupt, who organized his own private police force, kind of like a Contra group, and started terrorizing his own people, own traditionalists on the reservation. So the traditionalists asked for the help of the American Indian Movement. And the end result, after long protests and my getting no responses from any law enforcement agency in the country, Wounded Knee II was then occupied, and there was a 71-day siege.

After that, he, Dick Wilson, again intensified his goon squads. And the General Accounting Service, an agency of the United States government, did an investigation, and before the funding was — ran out, they found over 60 murdered Indian people, traditionalists. And so, on June 26th, we didn’t know it at the time, but we knew later from Freedom of Information documents, that the FBI, with the goon squads, were planning on attacks on the Jumping Bull Ranch and another ranch in Kyle — that’s another community on the reservation — that they were declaring American Indian Movement strongholds. And on June 26th, a firefight started. And the end result was two FBI agents and one Indian, young Indian man, was killed.

And they indicted four of us — Bob Robideau, Dino Butler, Jimmy Eagle. After a year, they dropped the charges on Jimmy Eagle. And Bob and Dino went to trial in Cedar Rapids, Iowa, and was found not guilty by reasons of self-defense. I was later — my trial was mysteriously moved from Cedar Rapids, which I was supposed to go to trial at the same place under the same judge as my co-defendants — was mysteriously moved to Fargo, North Dakota.

Later documents show that the FBI then went judge shopping to get a judge to work closely with them. And Judge Paul Benson agreed to do it. And I was not allowed to put up a defense. They manufactured evidence. The murder weapon was perjury by government witnesses. And the judge erred in his rulings, which prevented me from putting up a defense.

AMY GOODMAN: So, that was Leonard Peltier in 2000, almost — well, over two decades ago. He was at Leavenworth. I spoke to him in 2012. It was the day after a major fundraiser for him at the Beacon Theatre, a major concert fundraiser, and there was an event the next day. And it was in that room that he was able to call in. I spoke to him on the phone from prison. At that point he was in Florida, and this was during the Obama administration.

AMY GOODMAN: Leonard, this is Amy Goodman from Democracy Now! I was —

LEONARD PELTIER: Oh, hi, Amy. How are you?

AMY GOODMAN: Hi. I’m good. I was wondering if you have a message for President Obama?

LEONARD PELTIER: I just hope he can, you know, stop the wars that are going on in this world, and stop getting — killing all those people getting killed, and, you know, give the Black Hills back to my people, and turn me loose.

AMY GOODMAN: Can you share with people at the news conference and with President Obama your case for why you should be — your sentence should be commuted, why you want clemency?

LEONARD PELTIER: Well, I never got a fair trial, for one. … They wouldn’t allow me to put up a defense, and manufactured evidence, manufactured witnesses, tortured witnesses. You know, the list is — just goes on. So I think I’m a very good candidate for — after 37 years, for clemency or house arrest, at least.

AMY GOODMAN: So, that was Leonard Peltier nine years ago in prison from Florida. Judge Sharp, now Leonard Peltier’s lawyer, can you talk about the significance of what he said in these two conversations — and also, the first one, speaking to him during Clinton, in fact, wasn’t President Clinton close to granting him clemency? — and then under Obama, and what you hope will be different under President Biden?

KEVIN SHARP: Well, yes. Let me kind of take those in pieces. What Leonard said was accurate. Most of what he said, some of it was because he was there, so he’s got his own personal accounts, and some of it is backed up by documents turned over during the Freedom of Information Act — or, through a Freedom of Information Act request. We now know that the witnesses were intimidated. He’s absolutely right about that. We now know that exculpatory evidence showing this was not his weapon that killed the agents — we now know that was hidden. We now know that Myrtle Poor Bear was forced to lie. We know that the young boys who were the major witnesses, eyewitnesses against him, recanted that testimony. It wasn’t true. So we know those things. Yet here we are 46 years later still talking about whether or not this man should be freed.

The U.S. Attorney’s Office, the federal government, says, “We do not know who killed the agents.” They ended up — because of all of the misconduct that was discovered in the trial, they changed their theory from one that he shot these agents to aiding and abetting. Well, then the question becomes: Who did he aid and abet? Because his co-defendants were acquitted based on self-defense. So, who did he aid and abet? When asked that question, the assistant U.S. attorney, in one sense, a flippant response was, “I don’t know. Maybe himself.” Well, that’s impossible. You cannot aid and abet yourself.

So, all of those things stacked up with time tell you this — enough is enough. And I realize I say that, but it is absolutely true. This has to end. And, yes, my understanding from talking to the people involved at the time of the Clinton administration was that the papers were on his desk to be signed. Why they weren’t signed, I don’t know. I don’t know. The same with President Obama. I don’t know how close he got. But it tells you there is a constituency.

The big misconception about this is that Leonard Peltier was convicted of shooting two agents. He was not. They had to drop that, because there was — the evidence that they had presented that he had shot two agents was false. It was perjury. It was manufactured. So they had to drop that case and come up with a new theory, and that theory was aiding and abetting. And when Leonard talked about not being able to put on his defense, one of the things that Judge Benson said was — when he excluded the evidence related to the misconduct in the reign of terror, was that the FBI is not on trial here. But once he did that, you have to put all of this in context. That’s why Judge Heaney, who was on the 8th Circuit, who heard his appeal — and although upheld the conviction, later came out himself in favor of commuting this sentence — said the federal government has to take responsibility for what happened here. And absolutely, they do. Context matters. But the lack of evidence that this man killed someone also matters.

And so it’s time. We’re now 46 years later. We’ve got a 77-year-old man with multiple health issues, and his tribe, the Turtle Mountain Band of Chippewa, saying, “We will embrace him. Please send him home to us.” And that’s what I’m asking the president to do: Send him home.

AMY GOODMAN: Judge Sharp, what did J. Edgar Hoover have to do with this case, the former head of the FBI at the time?

KEVIN SHARP: You know, that comes back into COINTELPRO, where there was a division inside the FBI tasked with running counterintelligence against our own citizens. And they did that with respect to Martin Luther King, the student nonviolent movement, the Black Panthers and the American Indian Movement. If they considered them to be subversive, then they were running counterintelligence against them. And so, although Hoover was gone by 1975, we’re only one director removed from Hoover, and the tactics — if not a group within the FBI that had that name, the tactics still existed. And that’s exactly what was happening. It’s very Vietnamesque.

AMY GOODMAN: And I wanted to read a part of Senator Schatz’s letter, the senator from Hawaii, who appealed to President Biden. He is chair of the Senate Committee on Indian Affairs. He wrote, “Mr. Peltier meets appropriate criteria for commutation: (1) his old age and critical illness, (2) the amount of time he has already served, and (3) the unavailability of other remedies.” Explain what he’s saying.

KEVIN SHARP: Well, there is the ability to release prisoners under compassionate release and as part of the commutation powers of the president of the United States. And he’s asking the president, based on those criteria, to end this and send Leonard home. And he’s absolutely right about that. This is — and I hear this from executives, who say, “Well, the criminal justice system worked. I’m not going to step in and inject myself into the criminal justice system.” What they are doing, though, is abdicating their responsibility as part of the criminal justice system, the president or governor, in the case of a state, that they are the criminal justice system, and they have the ability to step in and correct a wrong like this, where the legal remedies — particularly because of the standard of review at the time, the legal remedies are no longer available. Now it’s time for the BOP and the president of the United States to fix this and send him home.

AMY GOODMAN: I want to end by reading more from Leonard Peltier’s statement on the current conditions inside the Coleman prison. Leonard Peltier writes, “I’m in hell, and there is no way to deal with it but to take it as long as you can. I cling to the belief that people are out there doing what they can to change our circumstances in here. The fear and stress are taking a toll on everyone, including the staff. You can see it in their faces and hear it in their voices. The whole institution is on total LOCKDOWN.”

He says, “In and out of lockdown last year at least meant a shower every third day, a meal beyond a sandwich wet with a little peanut butter — but now with COVID for an excuse, nothing. No phone, no window, no fresh air — no humans to gather — no loved one’s voice. No relief. Left alone and without attention is like a torture chamber for the sick and old.”

He writes, “Where are our human rights activists? You are hearing with me, and with me, many desperate men and women! They are turning an already harsh environment into an asylum, and for many who did not receive a death penalty, we are now staring down the face of one! Help me, my brothers and sisters, help me my good friends.”

Those are the words of jailed Native American leader Leonard Peltier after 46 years in prison, now at the Coleman prison in Florida. Judge Kevin Sharp is his new judge and — is his new lawyer and is appealing for clemency from President Biden. Finally, Kevin Sharp, has President Biden responded to your plea?

KEVIN SHARP: He has not. And I noticed in the press conference last week a reporter asked him about that and — or asked the press secretary about that, and she begged off of that, said, you know, she was unable to answer that question. So, you know, I know that it’s on the president’s radar, and he has the opportunity to fix this. And he has the opportunity to be a president with courage and a president who cares about the United States Constitution. It’s, you know, pick up the pen and sign the paper, and let’s end this. Let’s stop talking about this. The FBI says, “We are not the FBI of the 1970s.” And I believe them. But now let’s show it. Show it and support clemency for Mr. Peltier.

AMY GOODMAN: Kevin Sharp is a former federal judge and now an attorney who represents Leonard Peltier. Again, the latest news, Leonard Peltier is sick with COVID.

Next up, President Biden is meeting with New York’s new mayor, Eric Adams. Both want to put more police on the street. We’ll look at the national debate over policing with Patrisse Cullors, one of the founders of Black Lives Matter, author of a new book, An Abolitionist’s Handbook. Stay with us.

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