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Editor’s note: This episode of Scheer Intelligence was originally published on 12/03/21. We are republishing in solidarity with Leonard Peltier, who has been wrongfully convicted for over 45 years, on his 79th Birthday yesterday, Sept. 12.
Too few have heard of Leonard Peltier, an American Indian Movement activist who has been imprisoned for 44 years based on accusations that were never proven and a trial that was appallingly mishandled. Based on his mere presence in South Dakota’s 1975 Pine Ridge Reservation shoot-out, where one Native American activist and two FBI agents were killed, Peltier has spent the better part of his life behind bars. As the International Leonard Peltier Defense Committee’s website points out, this gross miscarriage of justice has been condemned by everyone from by Amnesty International and the Robert F. Kennedy Memorial Center for Human Rights to Archbishop Desmond Tutu and Rev. Jesse Jackson, among many others who consider him America’s longest serving political prisoner.
Now, as Peltier struggles with his health at the age of 77, there is mounting pressure for President Biden to offer the Native American activist the presidential pardon so many of his predecessors–including Bill Clinton and Barack Obama–have failed to grant him. This week Sen. Patrick Leahy became the most senior U.S. government official to call for Peltier’s release, joining hundreds of thousands of people, including Pope Francis, Coretta Scott King, and Willie Nelson, who have expressed their support for Peltier. Even James Reynolds, the U.S. attorney who helped put Peltier in prison in the 1970s, has appealed in letters to both Barack Obama and Biden to send Peltier home. “I write today from a position rare for a former prosecutor: to beseech you to commute the sentence of a man who I helped put behind bars,” he wrote in his most recent letter. “With time, and the benefit of hindsight, I have realized that the prosecution and continued incarceration of Mr. Peltier was and is unjust. We were not able to prove that Mr. Peltier personally committed any offense on the Pine Ridge Reservation.”
On this week’s “Scheer Intelligence,” host Robert Scheer is joined by Kevin Sharp, a former federal judge and one of Peltier’s lawyers, to discuss his case as well as how the justice system is rigged against people of color and others. Sharp also shares his reasons for resigning from the United States District Court for the Middle District of Tennessee, to which he was appointed by President Barack Obama. The former federal judge tells Scheer about his upbringing, and why he gave up a prestigious lifetime appointment as he found himself bound by mandatory sentencing to send people to prison for life who didn’t deserve that sentence. In one such case he sentenced a young, Chris Young, to two lifetimes in prison and later helped Young’s lawyers fight for his release.
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Listen to the full conversation between Sharp and Scheer as they examine a broken justice system and make the case for Peltier to go free at long last. You can also listen to “Leonard: Political Prisoner,” a podcast made by two filmmakers that recently won the Human Rights Audio Documentary Award at Duke University.
Credits:
Host:
Robert Scheer
Producer:
Joshua Scheer
Introduction:
Natasha Hakimi Zapata
Transcript:
Lucy Berbeo
RS: Hi, this is Robert Scheer with another edition of Scheer Intelligence, where the intelligence comes from my guests. In this case it’s Kevin Sharp, who was appointed to the U.S. district court by President Barack Obama. He served there for six years, and then quit because of mandatory sentencing that, in his words, [forced] him to put people in prison who he otherwise may not have imprisoned.
Now, before I got involved with trying to do this podcast on the Leonard Peltier case, which is what we’re here to discuss, I must say, reading, I didn’t know about Kevin Sharp, who is Leonard Peltier’s lawyer. And I just am blown away by the fact that you would resign from this plum appointment as a judge in, as it was put I guess in the Huffington Post profile on you in 2017, your “disgust with mandatory sentencing laws forcing him to put people in prison who he otherwise may not have imprisoned at all. He turned around and became the lawyer for one of the people he had just put into prison.” What is the secret sauce to get lawyers and judges like you?
KS: [Laughs] I don’t—
RS: How does this happen?
KS: I don’t know. I’ve had people ask me, you know, Kevin, you realize that was a lifetime appointment, right? I did. I did realize it was a lifetime appointment. You know, and the funny thing too is that you really work hard. I was somewhat plucked out of obscurity for the position, but it’s not easy to get there. And it’s part of what led me to resign, because you know, a lot of people don’t realize the process; that you’ve got to get the White House attention, you’ve got to get vetted by White House counsel, you get vetted and investigated by the Department of Justice. Not just the lawyers over there, but the FBI that goes back to the White House; they look at those files again. You’ve got to get through the Senate judiciary committee, who does its own investigation, and they have their investigators that work just for the committee. The ADA will do its own kind of mini-investigation of you, to determine whether or not you’re qualified for the position. And then I had a full Senate vote, a full vote, voice vote on my confirmation.
And so it took a while to get through all of that, but that’s part of what was frustrating for me, is because the reason you do that as a federal government, before you give someone Article 3 under the Constitution, is you want to make sure they have the intelligence and the temperament and the judgment to make these kinds of calls. Right? There’s nothing more important than what you do on the criminal side as a federal district court judge. I jumped through all of those hoops; they satisfied themselves that I am the person for this job, and then they take it away from me. They do that by creating these mandatory minimum sentences. And so when I found myself not just with Chris Young, the person you alluded to that I ended up representing, but others who were captured in this mandatory minimum—you know, let’s let the legislature show you how tough we can be on crime, we’ll create three strikes laws.
So, you know, we end up—I end up having to deliver a message; it was not anything that had to do with my judgment, I delivered a message from Congress that said three strikes, even though they are nonviolent drug offenses, will get you life in prison. And in this case it was for a 23-year-old young man who did not deserve life in prison. In no way, shape, or form. He did deserve to go to prison; there was punishment. But punishment is not the only reason we sentence people. There are lots of factors that go into what’s the appropriate punishment. And the punishment should be—or the sentence should be, which encapsulates all these factors—one that is [sufficient], but not more harsh than necessary to fulfill the reasons that we are sentencing them. And that was not happening in this case.
Talk about, I don’t know if you’ve ever seen the movie Apocalypse Now, but there’s a scene towards the end where the Martin Sheen character, who Sheen is playing Captain Willard, and Captain Willard has been sent to assassinate Colonel Kurtz, played by Marlon Brando. And Kurtz at one point towards the end says to Willard, “Are you an assassin?” And Willard says back to him, “I’m a soldier.” And Colonel Kurtz replies, “You’re neither. You’re an errand boy sent by a grocer to collect the bill.” And that scene from Apocalypse Now kind of hit me: Am I a judge? You know, what am I doing up here? I’m delivering a message from Congress that says, let me show you how tough we can be. And not taking into consideration any of the factors that would otherwise come into play to use my judgment on what a sentence ought to be.
And so that really was the catalyst for my frustration. It wasn’t just Chris; Chris Young and his codefendants got life sentences, but there were others who fell into that, not necessarily life, but I can think of one off the top of my head where I was forced to give someone a 15-year sentence, and I don’t know that I would have sent him to prison at all. Instead of 15 years, maybe that’s a probation, given the facts and circumstances of his case. And instead, it’s 15 years. What are we doing here? We’ve taken someone who was an asset, in the case of that young man who was taking care of his family, had a job, didn’t drink or do drugs or smoke. He did what, you know, what we expected him to do. He did have two prior felony convictions as a 17-year-old, but now he’s 27 years old and [has a] 10-year spotless record; why are we sending him to prison for 15 years? He’s doing what we wanted him to do. He made a mistake, but not one that he should have to pay for, really, with his life. Because the other side of that—you go and do your 15 years, and with good behavior he’s out in 13. But now who is out? Someone who has lost his job, who has no money, who has no skills, who’s been out of the workforce for at least more than a decade, and who has probably lost all of the relationships and connections that he had. And so instead of being an asset, he’s now a liability. But at bottom, he was always a human being.
And that’s what so disturbed me. And so when I stepped down, I started working on clemency and helping Chris Young’s lawyer on his habeas petition, which is a petition that’s filed when there are believed to be Constitutional violations. And I’d originally told his lawyer, an excellent lawyer out of Texas named Brittany Barnett, she was representing Chris and said I’m going to file a motion, what’s called a 2255 motion, Constitutional violations in Chris Young’s case. And I said, look, if I made any violations, if I made any mistakes, let’s find them together. You know, doesn’t hurt my feelings; if I made a mistake that should not have ended up in this place where I had to sentence him to life in prison, let’s find it. We couldn’t find it. And ultimately, we worked toward clemency, and that was granted with President Trump, granted clemency to Chris Young on his final day in office. And so instead of a life sentence, Chris Young is out, being the productive person that I recognized him to be in the courtroom that day I sentenced him.
RS: And it’s interesting, because you actually did not know about the case that we’re here to discuss, of Leonard Peltier, who was an activist for Native American rights and was caught up in the famous 1975 Pine Ridge Reservation incident, in which two FBI agents were killed in South Dakota. And he is now 77 years old, far away from that place, in Florida, in the penitentiary. He’s the longest imprisoned, arguably, political prisoner; he’s been in prison for 44 years. And this goes back, again, to this punitive attitude. Here is a person who was really—and you can discuss this much more authoritatively than I—never really much of a case that he was responsible for the killing of these FBI agents, but the other people they accused were not found guilty, and he became the fall person. And it’s really a reflection of what happened to jurisprudence as a result of Richard Nixon and his coming on with this strong law-and-order, and at that time, in ’75, we were still experiencing it.
But the interesting thing is that it held for Democrats and Republicans. We know you are now appealing to President Biden for clemency for Leonard Peltier, but after all, President Biden was also responsible for passing legislation, or helping pass legislation, that caused a lot of people to be imprisoned for determined sentences and so forth. And there’s one case at present that I’d like to start with asking you about, because the last time that Leonard Peltier had a real chance, before you appealed to Donald Trump—and now you’re appealing to Joe Biden, and [Peltier has] got really serious medical issues and so forth—was with Bill Clinton. And in looking back on this case, as I understand it, he was on the short list for Bill Clinton the night before, a much-troubled president accused of all sorts of things. And that the FBI actually condoned a rally of FBI employees demanding that he not be pardoned, and that his name was taken off so the next morning it was not on the list. Is that accurate?
KS: You know, the facts of that are accurate. It’s my understanding—
RS: You know, your voice is a little low. Could you—
KS: Let me move the microphone. Let me go back to the start of that question, because you mentioned that I was unfamiliar with Leonard Peltier’s case, and that it involved this shootout with members of the American Indian Movement, other members of the Oglala Sioux Nation, and the FBI, and that two agents were killed. There was a third person killed that doesn’t get mentioned, and that was a young Indian named Joe Stuntz. And you know, Joe was shot in the head by persons unknown who were either with the BIA or the FBI. And that was never investigated. So I like to mention that, because it’s important that Joe not be forgotten in all of this. There was a tragedy that happened on the Jumping Bull Ranch that day, that gets lost in this rush to convict someone, anyone, for the death of two agents.
And that’s kind of how we got here. As you go back, you know, it really goes back farther than Nixon. And it’s still this holdover; you can’t separate J. Edgar Hoover from what’s happening here, because you have COINTELPRO, you have all the things that we now know that the FBI was doing with regard to the Black Panthers or the Chicago Seven, or all of these groups that Hoover and then the Hoover acolytes that were right on his heels deemed to be subversive to the United States. And the FBI was doing things domestically, with what they called counterintelligence, that they never should have been doing, with American citizens. Unconstitutional. And so that’s the backdrop and the context for what happened out on Pine Ridge that day. And you’re right; I didn’t know anything about it. I had this vague recollection; you know, in 1975, when this happened, I’m 12 years old. As you remember, back to the seventies, there was so much going on with hijackings, or Patty Hearst, or Munich—it just seemed to be such a tumultuous time, that for me as a 12-year-old in the summer of ’75, you know, it all just kind of rushes over me, and I don’t remember one terrorist incident or one shootout or one protest from another.
RS: Where were you living when you were 12?
KS: I was in Memphis. So, you know, in a—
RS: Where you are now—
KS: I’m in Nashville now, 200 miles away. But Memphis has its own—yeah, right, it’s all the same. [Laughs] But you know, my father was a Memphis firefighter, and so he was a city employee in 1968 when Martin Luther King was assassinated in Memphis. And you know, he was a firefighter when both the police and the fire department went on strike simultaneously in the seventies. I say all of that to say it was—it just seems to be, even in hindsight, a particularly chaotic and turbulent time. And so I was—it all was kind of running together after I left the bench, and there were some stories in the newspaper because Kim Kardashian had gotten involved in the Chris Young matter. And Kim Kardashian, Van Jones, and I, along with Ivanka and Jared, met with Donald Trump in the Oval Office to talk about things like the First Step Act, but also to talk about Chris Young and a man who had appeared in front of me named Matthew Charles, who I was also advocating for.
So when someone heard that—it was actually Connie Nelson had read these articles; she’s Willie Nelson’s ex-wife, a longtime Peltier supporter—she had sent to me this big packet of material. And so the packet comes in the mail to me, and I start going through it, and it’s the Leonard Peltier case. And so I’m coming at this with two things: one, fresh eyes, because I had no preconceived notions about what had happened in 1975; and I had just stepped down off the federal bench a couple of years earlier. And so my mindset in reviewing this is not as an advocate, it’s as a neutral. It’s as a judge, and someone with a unique insight into the federal criminal justice system. Then I sit down and start reading the trial transcript, and I start to read through the newspaper articles of the time, read through, look at the photographs that are sent to me, FBI files; ultimately I end up going through thousands of pages of FBI documents that had been turned over to others—not me, turned over to others through a Freedom of Information Act request, something we call FOIA.
And as I’m going through that I’m just sitting here thinking, my God, who did this? What country are we in? This reads like a movie, you know, that seems so far-fetched, because it was not something that I had experience with. Unfortunately, the more I dug into it and the other cases, it was all too common. And that’s when I got back with Connie Nelson and ultimately with Leonard Peltier. And I said, I’m outraged. I apologize to you, and let’s see if we can’t fix this. And I agreed to take it on pro bono. And so I’ve been doing it for a couple of years.
RS: Well, another person of legal expertise that has gotten involved in this case is the U.S. attorney who was responsible for bringing the case against Leonard Peltier. I mean, this is a—this is a movie, unquestionably. Really. I mean, you know, this is Clarence Darrow time, or—it’s startling to my mind. And I have to confess, by the way, like many people who hear this or read this, you know, I haven’t done anything to help Leonard Peltier get out of prison, or to get a decent hearing, or anything else. We somehow, people get put away, and out of sight, out of mind. And you know, people have to be reminded that that respect and sympathy for the Native American Civil Rights Movement is a recent phenomenon. We were all raised, after all, on the wonderful white people killing the terrible redskins, you know, the Washington football team. And that these were savages, mentioned in the Declaration of Independence as savages, you know. And now of course we have major scholars like Benjamin Madley and Roxanne Dunbar-Ortiz and others, you know, doing books on the genocide against Native Americans and the horrible destructiveness and so forth. But at the time of this trial, there was no such consciousness. And in fact, J. Edgar Hoover was recently gone from the FBI, but the ethos was, FBI in peace and war, and they can do no wrong.
And the person, the U.S. attorney who brought the charges recently wrote, in July wrote a letter to President Biden. And you’re obviously familiar with this, but I just want to read the first part where he said, “Dear President Biden, I was the United States attorney whose office handled the prosecution and appeal of Leonard Peltier’s case. I was also later appointed by the United States attorney general Benjamin Civiletti as the U.S. attorney for South Dakota to handle the matter involving a murder on the Rosebud Reservation. I write today from a position rare for a former prosecutor, to beseech you to commute the sentence of a man who I helped put behind bars. Leonard Peltier’s conviction and continued incarceration is a testament to a time and a system of justice that no longer has a place in our society. I have been fortunate enough to see this country and its prevailing attitudes about Native Americans progress dramatically over the last 46 years.”
I’ll post this letter, but you know, again, it’s a movie moment. Here is the attorney, U.S. attorney who presided over the case against Leonard Peltier, who is now beseeching, to use his word, the president of the United States to commute the sentence of a man who he helped put behind bars. So talk about that appeal, and we didn’t get back to the—Clinton was going to pardon him according to some sources, the night before he left office, and then the name was taken off, and there was some evidence of FBI pressure on him, and protest. Ad you know, Donald Trump didn’t come through. So what is it? These presidents just are afraid to take on the FBI?
KS: You know, the FBI is a powerful organization. And so you’ve got that element to it—they are not, this is not the Hoover FBI now, but they are still people. Right? They’re still human beings, and they have motivations and engage in conduct and misconduct like other people. The problem is that they have this position of power where you have to be above that. And when they are not, you know, serious consequences exist. And so it has been difficult, particularly early on, before we knew of all of the misconduct, it’s difficult to believe that our government engaged in this kind of misconduct. And it wasn’t just the FBI; the U.S. attorney’s office engaged in misconduct, withholding exculpatory evidence from Leonard’s defense team during the trial. That is serious misconduct, and if that had happened today, as we saw with General Flynn, right—regardless of what you think of General Flynn, they withheld exculpatory evidence. That ought to get you, at the very least, a new trial.
RS: Well, I just don’t—I’m hearing this, and people listening to this, and they want to know the other side, and what’s the other side. But you just mentioned the other side. It was James H. Reynolds, who was the U.S. attorney, who presided over this.
KS: Well, that’s right, and the rest of the letter—
RS: And then he says here, in his letter to President Biden—this is what I don’t understand why, how, President Biden could turn this down, any more than how Bill Clinton turned it down. When you have this letter—this is July 9th of this year—he said, “The final theory on which Mr. Peltier’s conviction now rests is that he was guilty of murder simply because he was present with a weapon at the reservation that day. However, Mr. Peltier has been labeled, and more importantly was sentenced, as a cold-blooded murderer based on a theory that we were forced to drop on appeal. He has served more than 46 years on the basis of minimal evidence, a result that I strongly doubt would be upheld in any court today.” Now, after that paragraph, how in the world—you know, I mean, I voted for Bill Clinton; I’m always voting for the lesser evil, you know. But how in the world could anybody—Republican, Democrat, any president read this letter? OK, this is the guy who brought the initial charges, and he’s saying the whole thing doesn’t validate this, and the guy’s still in jail, and he’s seriously ill, and what are we doing? Why is he this—is this the scalp of the native that we’re treasuring? Is that it?
KS: Well, you know what’s interesting too, is—let me go back to, James Reynolds was a Carter appointee, and so the Nixon U.S. attorney’s office obtained the indictment from the grand jury, and then with a U.S. attorney named [unclear]. Reynolds came on right after the trial was over, so he took over post-trial motions and all the appeals. But the U.S. attorney’s office at that time obtained this indictment through perjured testimony. Right, they had pressured particularly these three young boys that were at the Jumping Bull Ranch that day to say things that simply were not true, and the boys recanted later.
RS: Could you get closer to the mic again, I’m sorry.
KS: So Reynolds came on for the post-trial motions, by the time he got through, although Carter won in ’76 and Leonard wasn’t tried until ’77. Reynolds wasn’t confirmed to take over the U.S. attorney slot until after the trial, and so he picked up as U.S. attorney in post-trial motions and appeals. So he would not have been privy to the misconduct that happened, or that did happen with the grand jury in order to obtain this indictment. So you know, Reynolds comes into this with the same misinformation that the rest of us had, and he’s got it on appeal. But what Reynolds does then learn is that there was exculpatory evidence withheld. And he’s the one who realizes our conviction, where the conviction was based on, an assassination, had to be changed to one of aiding and abetting—he was there—because there was no evidence that he shot anyone. None. Now, the U.S. attorney’s office knew that. The FBI at the time knew that. And so—
RS: They knew that there was no evidence that Leonard Peltier had shot anyone, and yet he was going to be put away for life for having supposedly—because two FBI agents died.
KS: That’s right. In their minds—and again, this is back to they are human beings, but they’re human beings with a special power, and so they’ve got to be above this—
RS: And by the way, let me just throw in here, a special responsibility. If you’ve got the power to put people away for life, you’ve got the responsibility to let us know when the evidence isn’t there, or where there’s a miscarriage of justice.
KS: Absolutely, right, that’s part of their job. It’s part of their job. But this is the same group that got—
RS: They’re all lawyers, or they used to be, right? They’re supposed to even know the law, FBI agents.
KS: They know. They knew what they were doing. But who members of the FBI had been killed. And Leonard’s two codefendants, who were tried separately because Leonard went to Canada, not believing that he could get a fair trial here, which turned out to be true—his codefendants were tried and they were acquitted based on self-defense. And so when they had to drop the Leonard-shot-them theory that they got a conviction on, they dropped that on appeal and went, well, the exculpatory ballistics test that shows it wasn’t him doesn’t matter because we no longer say he shot them; we don’t know who killed the agents. That’s a quote from the assistant U.S. attorney who tried the case: We do not know who killed the agents, or what role Leonard Peltier may have played. So they changed it to aiding and abetting; he was there. But then the question is—
RS: Wait a minute—
KS: Well, the question has to be asked, though—I’ll come back to that—the question has to be asked, who did he aid and abet? Who did he aid and abet? His codefendants were acquitted based on self-defense. There was no crime. You didn’t aid and abet a crime. Now, [Lynn] Crooks, who said we don’t know who killed the agents, also said when asked by Steve Kroft, well, who did he aid and abet? His response was: I don’t know, maybe himself. Now, I don’t know if he thinks he was trying to be funny, but this was serious, and it’s a man’s life; you cannot aid and abet yourself. And he knows that. That’s ridiculous. It is ridiculous that he would say that in response. And it shows you the level that they did not care who they convicted, but that they got a conviction. They didn’t care. So, but right, I think you were about to ask me that—Lynn Crooks, the lead trial lawyer in the case, later said: We do not know who killed the agents. Nevertheless, 46 years later, Leonard sits in a maximum-security prison. He’s 77 years old. That’s ridiculous. Right? What danger is he? No need for him to be in prison at all.
RS: Well, the danger is, if he—if an American president, I don’t know what they do, commute the sentence, or—
KS: Yeah.
RS: —clemency—
KS: Well, clemency is an umbrella term. Commuting is the remedy, part of the remedy, and pardon is another remedy.
RS: OK. You’re saying some bad stuff happened on the part of our most revered law enforcement agency. That’s what Hoover never wanted to come out. That’s why he was willing to blackmail American presidents and threaten them and so forth. And the sanctity of his agency was the goal, was the important thing. It’s the only institution in America—it’s very clear from what we now know about Hoover, and the people around him, DeLoach and Sullivan and all those guys—I remember I even interviewed DeLoach at one point. You know, their belief was that the agency, the FBI, was the only part of American government that was not corrupted. And they were holding the—they were the dam against all these corrupt forces out there, based upon a democratic political system, and Congressional people asking nasty questions, and the public daring to challenge and hold them accountable. They did not believe they should be held accountable, except internally. That was Hoover’s whole thing, and then—that’s why Leonard Peltier’s still in jail. He is the scalp that they have from their successful war. That’s what it is: We were right, because we got the culprit. Otherwise, what were we doing on the reservation? What were we asserting? After all, a reservation is supposed to be an independent territory, right? After all, the whole fiction of what happened in this country is not that we grabbed real estate and then killed people, towards that end; but no, we were symbols of virtue and civilization. Well, the reality is quite different. And that’s why he’s in jail, as far as I can tell. And the real question, I’ll go back to that, why would Bill Clinton back off at the last minute, you know? Why did Donald Trump back off at the last minute?
KS: Well, right. I mean, you’re right that there was a protest by retired, and I believe—
RS: Barack Obama, who appointed you, why didn’t he do anything?
KS: Well, I don’t know, right. I wasn’t in the room; I don’t know what they were thinking. I can speculate, and I think with good evidence, about Bill Clinton. All the indication, the information that I have is similar to what you have: the papers for commuting the sentence of Leonard Peltier were on Bill Clinton’s desk the night before he left. The next day, he did not sign them. Why is that? My speculation is—and it, you know, is based in fact as well—that the FBI pressured him not to do that. And Bill Clinton was in a very different position, had his own vulnerabilities that you alluded to earlier as to why he didn’t do that. But we also know much more now than Bill Clinton knew in the 1990s. And we have additional time, that says it is time to move away from the Hoover FBI and grant clemency to Leonard Peltier. You know, one of the things that I saw in the FBI files was a letter from Louis Freeh to Janet Reno, protesting any clemency for Leonard Peltier. And as I read that letter, you know, with 20 years of hindsight, it was infuriating. Because although Louis Freeh didn’t say anything in the letter as it stood that was not true, it left out so much as to be an untrue letter. Not truthful.
RS: Introduce his role.
KS: So Louis Freeh was head of the FBI; he was a former judge, head of the FBI during the Clinton years. Janet Reno was the attorney general. And so when clemency applications or petitions are filed, they go through the Department of Justice. They go through the pardon attorney’s office; from the pardon attorney’s office it goes to the deputy attorney general; in this case it would have gone also to the attorney general, from the attorney general over to White House counsel, and then White House counsel to the president. So there are a lot of desks that this petition has to go across. And the way the Department of Justice is set up, you’ve got a civil side and a criminal side. On the criminal side of things, with the deputy attorney general at the top, you have all the U.S. attorneys, the prosecutors; within that division, you have the FBI; within that division you have the bureau of prisons; within that division you have the pardon attorney’s office.
There is such an inherent conflict of interest that I’ve got to get through if I’m filing a petition. The very people who prosecuted the case, the very people, as you talked about earlier, who’ve got a vested interest in supporting their conduct or misconduct, who’ve got an interest in this case going away. And the truth is, the irony is that it’s not going away, and it hasn’t gone away because they’ve fought so hard to keep it, to keep Leonard in prison. It’s time, if they want to move on, if they want to stop talking about this, if they want to stop the spotlight from shining on their past misconduct—right? Remember, this is 50 years ago. No one who was involved in that case is still with the FBI. But they’re saddled with this because they won’t let it go. They want to keep fighting something that clearly they were in the wrong.
And that’s kind of the irony of this. The FBI, not realizing it, needs for Leonard Peltier to be released, so that they can break from this Hoover FBI. It’s funny that we’re still talking about J. Edgar Hoover, but that was the case. That’s the FBI, when this shootout happened, and all the reasons why the FBI and the BIA had such a large contingent of agents and officers up there, right? Why is that? You know, at that time we were only one director removed from J. Edgar Hoover; he hadn’t been gone that long. And his stamp was still on that FBI, and it will always be on that FBI, until they break from it.
RS: Well, you know, the founding wisdom—there are a lot of contradictions in our history and our origin story and everything else. And I applaud the new sophistication about it, and the concerns; you know, we were a society that came out of slavery and an example of maybe settler colonialism; there’s a lot of things you could say, and we’ve discussed on these podcasts. But there’s a wisdom in that Constitution—and, yes, written by rich white men and slaveowners to an unfortunate degree. But the fact is there’s a wisdom. And the wisdom is, don’t trust us. Don’t trust us when we have power. That’s the wisdom. That’s the only reason you got your Bill of Rights and you got your separation of powers and all that. We’re going to have power, we’re writing this document, and we’re going to go along with amending it, and basically, this document is a warning: power corrupts, absolute power corrupts absolutely, and we have to have checks and balances, you have to challenge us. Yet when we examine a case like this, which is basically the ethos of the old boy network—don’t make trouble for our agency, don’t make trouble for our people, don’t bring up uncomfortable, inconvenient truths. And a guy sits in jail all this time now, right? How long has it been, 33 years or something?
KS: Oh, no. He’s been in prison for 46 years.
RS: Forty-six years. So what is it like? You’ve visited him, you are his lawyer, right?
KS: Well, I have not been in his particular cell, but I have been in prisons before where I have been in cells. They’re tiny. My law firm—and I wasn’t involved in this case, but my law firm represented Albert Woodfox, who was one of the Angola Three, before I joined my present firm they were representing him. Albert was one of three men who had been in solitary confinement for over 44 years. Six-by-nine-foot cell in Angola Prison down in Louisiana. They are boxes. It’s a box. And what that does to someone, I don’t know how Albert or anyone who spends even minimal time in that kind of solitary confinement, how they come out. How Woodfox did it after almost 45 years, I don’t know.
And Leonard has been in a maximum-security prison. Sometimes they’re big enough for two people to a cell, sometimes it’s one. You know, for over four decades now. And he has kept himself together. He’s kept his mind together, he’s kept his hope for freedom in the forefront of his mind. And he’s taught himself to be an incredible artist, which allows him to get out of that cell, at least in his head, as he paints. You know, these are human beings, and you’re right, the Constitution may have had imperfect messengers and authors, but the document itself is sound. And there is a reason for it, and there is a reason we need it. People are people. Let’s create this document—that wasn’t just pulled out of their heads, right? This document was created by philosophies at the time, and although it may have been channeled through their pens, came from other traditions as well around the world. The document is still the greatest document that’s ever been created, certainly in this country, but I would say in the world. That’s why we need it, though, because the people who created it—right, right—[overlapping voices]
RS: If individual freedom is critical to what we mean by human, it is the greatest document. But let me just mention now to people listening to this—because, you know, this is a conversation we could have had for the last, well, almost five decades now. You know, and people sort of vaguely know—Willie Nelson has had concerts, others. I mean, the list of people who have called—here we are, the U.S., we claim to be the beacon for individual freedom in the world. And here you have a case where Pope Francis, the Dalai Lama, Mother Teresa, Nelson Mandela, Coretta Scott King—you know, you go down the list of people, Amnesty International, you know—that have called for justice in this case, for compassion, for mercy. And what gets in the way—
KS: Right. Add the prosecutor to it, add James Reynolds. [overlapping voices] And add to that, as of yesterday, Senator Patrick Leahy, the oldest, most respected senator—
RS: And Patrick Leahy has quite a bit of independence and courage, and so he’s not the typical politician. But what gets in the way of justice is business-as-usual, is politics, is covering their backside. And so, you know, I’m certain—I’ve interviewed Bill Clinton, I’ve interviewed a number of these people I’m certain that Bill Clinton knew that Leonard Peltier should not be in prison for another day. I’m certain he knew that, or I’d have to severely lower my already somewhat lowered estimate of the man. But really, I mean, the whole argument—I brought up lesser evil, you know. I’ve voted for these people; I mean, I voted for people in California here who’ve unfortunately—until our current governor ordered the rehearing and reinvestigation of the Kevin Cooper case to some degree. I give him credit for that. But our current vice president was the attorney general here and didn’t lift a finger, really, to get justice in that case.
And so as you—you know, you look around these cases in the country, what gets in the way of justice is not the bad person or the good person, the Republican or the Democrat. It’s people who find it convenient to look the other way. That’s really what’s—and this is not on the top of the list. That’s what you’re up against now. You’re going to have to convince people that it should be on the high—and this is where maybe public pressure can be decisive now, you know, this many years later. You’ve got to convince these people that, yes, it may be politically a little difficult—I don’t know why it’s that difficult to bring justice—but you’ve got to do it. Or, you know, people won’t vote the lesser evil next time. They might think, you know, you’re not such a wonderful person. I think that’s really what it boils down to, because you can talk about the—I mean, there’s no legal basis, as was said by Reynolds—there’s no legal basis for keeping him in jail now. And this is not a case that would hold up by current standards, right? And you even thought that Donald Trump would accept that. So what is the only reason this guy is still in jail another day? It’s politics.
KS: It’s politics, that’s right.
RS: It’s opportunism, right? It’s careerism. Careerism trumps everything. And you know, an amazing thing about you—I’ve never talked to you before, I didn’t really know about you until a couple of days ago, a week ago. But the fact of the matter is, you—you know, most people go along with even torture, you know. We’ve had lawyers defend torture, and they go along with it because they don’t want to have a kink in their career curve. Not that it would destroy—you gave up your career as a judge. You gave up your career as a judge, how many—you know, we have so few whistleblowers, but how many people do that? Accept that kind of sharp reversal of your career, give up a life appointment? You know, I happen to teach ethics at the University of Southern California, which is sometimes ethically challenged. And we always talk about the problem of success. The problem of, you know, careerism. Does careerism trump everything?
And this is a good way in which to sort of wrap this up. You know, because I’m only here talking about the Leonard Peltier case because I had been remiss on this case. I’ve been a journalist a long time, I’ve written about a lot of different things; I haven’t been active on this case. I should have been. So, OK, that’s my confession. And the fact of the matter is, we wouldn’t even be talking about it now if you hadn’t changed roles, if you hadn’t given up the sinecure prestige and power of being a federal judge, and stepped in and said, hey, wait a minute—this is wrong, and I’m going to do something about it. Now, when I started out, I said I want to know what that sauce is. Because if we don’t have that, we don’t have—you can’t have democracy. You don’t have whistleblowers, you don’t have honest judges, you don’t have people of privilege willing to step up—the thing doesn’t work. It’s not just a matter of rules on a piece of paper. People have got to have the courage to make those rules, those obligations, significant in the real world. And you know, it’s kind of depressing that you’re sort of the rare federal judge that’s been willing to do that.
KS: Ah, there are others on occasion; I really can only think of one other as I’m sitting here, but I’m sure there have been others. You know, part of that is that my—particularly my father just instilled that in me, that we’re servants to this—
RS: Your father the—
KS: My father the firefighter, who had been a member of the 82nd Airborne when he came out of high school, encouraged me, and I joined the United States Navy. So I’d served in the executive branch of government after law school, I worked for Congress, served in the legislative branch, was fortunate enough to be appointed to the judiciary. So I got to serve in our judicial branch of government. I’d seen all sides of it, and each time, I took an oath to uphold and defend the Constitution of the United States. That had to mean something, right? It meant enough to me to do it three times for three different branches of government, each one I knew to be very important, and that oath meant something to me. And if it doesn’t, and if the document doesn’t mean what it says, and if our raising our hand and swearing to support and defend that document doesn’t really mean what it says—then what are we doing? What are we doing here? And I will admit, there are times where I ask that question: what am I doing? [Laughs] You know, this would be a heck of a lot easier to just go, let’s, you know, it’s every man for himself, let’s go.
RS: Yeah, but you’ve got your finger in the dike, and if you pull it out, the whole dike’s going to come down.
KS: That’s right. This is about me, right? This is about all of us. It’s not just about Leonard Peltier; this is about the Constitution, and the Constitution is about all of us. This is a ripple effect: if they can do this to Leonard, they can do it to anyone. You know, if I don’t stand up when they’re coming for somebody else, what happens when they come for me? Or my family?
RS: Well, it’s interesting, when you mention this about the Constitution, because the Constitution has guidelines. But we know—I mean, the Soviet constitution had guidelines. You know, but Stalin didn’t care about that. You know, there are lots of documents around the world, I mean, vicious dictators don’t have any trouble getting people to write them a nice document about how they’re committed to freedom and so forth. The real issue—and it’s interesting. I want to talk to you just a little more about this, because this is what I kind of teach and get into—you know, the Constitution assumed a citizenry that had more integrity and independence, and indeed knowledge, than one can assume now. And by that I mean they were talking basically, you know, on the least educated level of yeomen, of stakeholders, of people who tilled the soil, but they were going to be basically acting on local stuff; they could be informed, the Post Office would inform them, life was simpler. Now you’re talking about people who are the subject of constant manipulation, mass media manipulation, constant honing of the message and PR and everything. And the only thing that seems to come clear in all this is you must be a success, and you must make good money, and you must be prestigious. And if you have to lie, whatever you do, as long as you don’t get caught. And really, when you look at it, we have very few whistleblowers. I’m putting you in that category now, because you sort of blew the whistle on, you know, like Daniel Ellsberg did, you blew the whistle on a system you believe in. Daniel Ellsberg, you know, that rare whistleblower—we still haven’t had too many to follow his example. He thought there would be a lot—
KS: No, I wouldn’t put myself in his category either. [Laughs]
RS: Why not?
KS: I’ll carry his briefcase, but—
RS: No, well, you should be in his category. Because the principle is the same. He’s a guy who was in the Marines, you know; he believed that we needed a strong military, he went to work in the Pentagon, he worked on the Pentagon Papers, he saw that the Vietnam War was a tissue of lies, and he felt the need that the public had to, the press had to have access to it, and through the press the public, in a responsible way. So he was the citizen that the founders had in mind: there would be people—and we’re going to protect their free press and their free speech, and we’re going to protect their rights, so they’ll speak the truth and they’ll hold us accountable, and we’ll have a decent society. The fact is we have a handful—I can name almost every significant whistleblower, and you know, there may be others that we don’t hear about because the media doesn’t pay attention. But the very fact that you’re such an odd figure in this—that we’re only now—I mean, I suspect this might have been true of the Huffington Post, I don’t know; they deserve credit for coming forward on this. But, really, how has this guy been sitting rotting in jail—well, he hasn’t been rotting, he’s been surviving. But how has he been all this time in a case which is as—you know, the former U.S. attorney who took over the case, James Reynolds, said could not survive in a court now.
KS: No.
RS: If it couldn’t survive in a court now—just close by taking us through it. I said I would end this in 40 minutes, we’re approaching 55, but just give us, just tell us why it would not survive now. How ridiculous it is that this guy, at 77 years old, has to somehow die in prison.
KS: Well, that’s the—right, as I said to the Huffington Post reporter, that’s the $64,000 question. Why are we still here, because this case does not survive an appeal today. I’m not sure that you could even find a judge to make those kind of rulings today, in spite of what people might think about the politics of one district judge over the other. I just don’t see even that mentality being in the judiciary today, to make the rulings the judge made at the time, to allow this kind of misconduct and gamesmanship to be played by the prosecution.
There was even, as I’m reading this—and I’d never seen it before, as I started reading the transcript—on day two of the trial, three women show up at trial who have nothing to do with the case. It’s all being taken down by the court reporter, so I’m reading it as if it’s a novel. Three women show up in court and say, we brought ourselves down here because we can’t live with ourselves if we don’t tell you what we know about one of your jurors. And so the court takes a recess, it’s still being taken down, the jury’s dismissed, it’s at the end of the day anyway. The ladies come in and they have a signed document that says we work with one of the jurors in this case, and she told us she is prejudiced against Indians. And we think the court ought to know that.
And so the court takes each one of the ladies individually, asks them, OK, what are you talking about, they all tell essentially the same story—almost exactly the same story, but certainly not rehearsed, and enough difference. That they’re down taking a coffee break, they’re down in the cafeteria with someone who’s now a juror, and she says I may be called—this was before she was selected as a juror—I may be called onto this murder case by the Indian; you know, I’m really prejudiced against Indians. Each one of them says that. The court says, OK, well, let’s talk to the juror about this. You think the juror is going to say—and I’m reading the transcript, waiting anxiously to see how she responds—you think she’s going to say, never said it, or no, they misunderstood me, that’s not true. What she says is, yes, I said that, and that’s true.
I—OK. [Laughs] Now I’m stunned. The court basically says, OK, anybody have any questions for her? Sorry, the court does say well, can you still be fair, and she says yes. Then the court says, anybody else have any questions? Peltier’s lawyers say, OK, you understand this is a really important case, yes I do; and you can still be fair? Yes I can; and then his lawyers say, OK, she’s OK with us. And the prosecution has no questions. I am floored by that. This woman stays on the jury. And I turned to the back to go, surely somewhere along the line she’s kicked off the jury—but she’s there at the last day when they read the jury verdict, there’s her name, she’s one of the jurors. That Leonard’s lawyers let her stay on, today—they didn’t appeal it because it had been waived. And at that time, you couldn’t waive that kind of objection. They waived it by saying she was OK.
Today, you cannot waive that kind of objection. That’s just ineffective assistance of counsel, and you get a new trial, just on that one issue. Today, you get that kind of exculpatory evidence; the standard at that time was, if the evidence had been introduced, as they should have under the Constitution, would the jury probably have made a different decision? The court of appeals said, look, this thing is riddled with misconduct, but we can’t say they probably would have made a different decision. So the conviction is upheld. That’s not the standard today. The standard today is, in the absence of that evidence, did the defendant get a fair trial? And the answer to that is, absolutely not; try him again. You know, we have admitted—and there was not even any question that the FBI pressured witnesses to lie. No question about that. Today, you get a new trial, or it’s tossed altogether, and those witnesses are excluded. I mean, those kind of things—that’s what James Reynolds was talking about. In 1977, you could get away with that. In 2021, you cannot. And that’s been the law for decades. You cannot get away with that. If we’re going to convict people—
RS: Well, finally, what about the fact that they don’t—this guy is in jail, Leonard Peltier, because two FBI agents died, and they don’t even make the case that he was involved in killing them. All they say is that he was at the reservation at the time.
KS: He was there, and he was firing a weapon. I think they do say that, that he fired a weapon. But he didn’t hit anything, right? And so that’s their position: well, he was there. But there were about 40 people firing weapons on the AIM side, and about 100 people firing on the government side.
RS: For those people who don’t know the whole original—we can’t leave it there, so just tell us. You know, tell people what was going on, and what this was about.
KS: So the quick version of this, the United States government—this starts to sound a lot like Vietnam—had picked sides in a dispute between traditional Native Americans and the Oglala Sioux Nation, and what came to be known as government Indians. So the government, through the BIA, had installed their own chairman of this tribe. They did that because this chairman was willing to lease land—this was now about mineral rights and land—back to the government. The traditional natives wanted to keep this land; it was theirs, right? You stole it from us; all we got in the deal was this little patch of reservation, and we don’t want to give that up; we want to live in our traditional way on this land that was rightfully ours to begin with, and is now ours because of a treaty.
And so that created the dispute, and the federal government had picked sides. The government Indian side was known as the GOON Squad; this was the name they gave themselves, the Guardians of the Oglala Nation. They ruled by fear and by violence. There were 60 murders in and around this area over a three-year period. The FBI did not investigate, and certainly never convicted anyone for them. They were providing ammunition, weapons, and information to the GOON Squad, so that they could keep their upper hand over the traditionals. Right, this sounds a lot like Vietnam at that point. And they went from a handful of agents in the area to 100 agents in the area. And that created this massive tension. The traditional Indians that lived on the reservation had asked the government for help, to help them, because they were being assaulted and murdered by members of the GOON Squad. These 60 people that I’m talking about having been murdered were affiliated with or members of the American Indian Movement, or known as sympathizers with the American Indian Movement. They had asked the government for help; the government did not give them any help. Why? Because we now know they were on the other side. They were never going to help.
So they called in the American Indian Movement to help protect them, and they had set up this area on the Jumping Bull Ranch. Now, it’s such a violent area that when two agents come onto the reservation, supposedly according to them they are following a red pickup truck that fits the description of one owned by a native named Jimmy Eagle, who’s wanted for stealing a pair of cowboy boots. Now, question whether or not the FBI has jurisdiction over that, because they’d better be an expensive pair of cowboy boots, or this is not even an FBI problem, to come look for cowboy boots. But they follow, in unmarked cars and dressed in plain clothes, they follow this pickup truck onto the reservation. Nobody knows who they are or what is going on here, and shooting starts. And that’s when it then becomes just chaos. Joe Stuntz is killed, two agents are killed. And so that’s what then starts this. And the FBI wants to convict someone for it.
And when Dino Butler and Bob Robideau, the two codefendants, are acquitted based on self-defense, because the original judge let in evidence of what was known as the reign of terror—the reign of terror was all those things I described that were supported by the federal government and conducted by the Guardians of the Oglala Nation. It was a reign of terror. They were simply trying to protect themselves. And then when you have two guys in plain clothes and unmarked cars come on, no one knows who they are, that their agents, and shooting starts out, who’s surprised by that? That’s why two courts and Judge Heaney, who was the judge who wrote the opinion on the Eighth Circuit Court of Appeals, on one of Leonard’s appeals, said the government has to take responsibility for their role in the violence that occurred that day, and they have never done that. And James Reynolds says something similar in his letter: they played a role, and they have not acknowledged that, that led to the deaths of three people. And so that’s where we are, and that’s where Leonard Peltier becomes the scapegoat.
RS: Well, let’s end it for now on that note. I’ll to the best of my ability put up as much information to help people get back up to speed, or for the first time get up to speed on this case. And take it up with the president, whether you think he should exercise his power to release this 77-year-old prisoner, who the original—well, not the original. But the U.S. attorney in that area has written such a compelling case, and now may also, we’ve been hearing from Kevin Sharp—former judge Kevin Sharp, who is representing Leonard Peltier—to bring us up to date. So that’s all the time we have. We’ve taken a lot of time for this, you’ve taken a lot of time, Kevin Sharp—
KS: No, I’m happy to do it, and I start talking about Peltier’s case and it’s hard to stop. It’s so outrageous.
RS: Yeah, and hopefully it’s technically working so we won’t have to redo it. But anyway, and I want to thank Christopher Ho at KCRW, the engineer who posts these shows so effectively. Joshua Scheer, who is the executive producer of Scheer Intelligence. Lucy Berbeo, who does the transcription. Natasha Hakimi Zapata, who write the intro. And the JWK Foundation, which in memory of Jean Stein, a highly regarded writer and journalist who was very interested in this case, I want to thank them for their support for these podcasts. See you next week with another edition of Scheer Intelligence.