I. Background II. Canadian Extradition Proceedings British Columbia Supreme Court Federal Court of Appeal Submissions to the Minister of Justice Supreme Court of Canada III. Canadian Civil Proceedings Halprin v. Sun Publishing IV. United Nations Human Rights Committee V. American Criminal Proceedings United States District Court for the District of North Dakota (1977) United States Court of Appeal 8th Circuit (1978) United States Supreme Court (1979) United States District Court for the District of North Dakota (1983) United States Court of Appeal 8th Circuit (1984) United States District Court for the District of North Dakota (1985) United States Court of Appeal, 8th Circuit (1986) United States Supreme Court (1987) United States District Court for the District of Kansas(1991) United States District Court for the District of North Dakota (1993) United States Court of Appeal, 8th Circuit (1993) VI. Canada's efforts to have the "Poor Bear Episode" explained VII. Appendix 1--Poor Bear Affidavits VIII. Appendix 2--Summary of Evidence of Political Character IX. Appendix 3--Chronology
Pine Ridge Reservation Murders (RESMURS)
On June 26, 1975, FBI agents Jack Coler and Ronald Williams were shot dead at the Pine Ridge Indian Reservation, South Dakota. On January 15, 1976 Leonard Peltier, Darrelle Boulder, Robert Ribodeau and James Eagle were indicted for first degree murder in relation to the killings of the two FBI officers. At the time he was indicted on the RESMURS charges, Peltier, who had outstanding charges in Wisconsin and Oregon, was a fugitive. Peltier had been charged for attempted murder of a police officer on November 22, 1972, in Milwaukee, Wisconsin. A warrant had been issued in Wisconsin for his arrest in relation to these charges on June 29, 1974. Peltier had also been charged in Oregon with the attempted murder of an Oregon State Trouper on November 15, 1975 and burglary on November 16, 1975. A warrant for his arrest on the Oregon charges had been issued on December 2, 1975 in Oregon.
On February 6, 1976, Peltier was arrested in Hinton, Alberta on an outstanding warrant of apprehension issued on January 23, 1976 in relation to the Wisconsin charge of attempted murder. The Vancouver Police Department had first been contacted by the Milwaukee County District Attorney concerning Peltier's whereabouts and possible extradition in relation to the attempted murder by letter dated September 19, 1975.
On February 12, 1976, a second warrant of apprehension was issued for Peltier in relation to the murder of the two FBI agents, burglary, and two attempted murders. The attempted murder charge which was the subject of the January 23, 1976 warrant was included among these charges. The original warrant of apprehension relating to attempted murder alone was abandoned the same day. On February 18, 1976, the United States formally requested the extradition of Peltier on the following charges:
1. Attempted Murder of State Trouper Ron Hlavinka on November 22, 1972 in Milwaukee, Wisconsin;
2. Murder of FBI special agent Jack Coler on June 26, 1975 on June 26, 1975;
3. Murder of FBI special agent Ron Williams on June 26, 1975 at the Pine Ridge Reservation in South Dakota;
4. Attempted Murder of Oregon State Trouper on November 14, 1975, near Ontario, Oregon.
5. Burglary on November 15, 1975, near Nyssa, Oregon;
The Canadian extradition proceedings which followed Peltier's arrest set in motion a chain of legal proceedings which continued over the next two decades. On June 18, 1976, Peltier was ordered extradited from Canada with respect to the two murder charges, the attempted murder of Hlavinka, and the burglary. Peltier appealed the decision of the extradition judge to the Federal Court of Appeal, the Minister of Justice, the Honourable Ron Basford and the Supreme Court of Canada.
He launched a complaint against Canada with the United Nations Human Rights Commission. His complaint included the assertions that Canada unlawfully extradited him and that he was subjected to cruel conditions while detained in Canada. His complaint concerning the extradition was found to be "inadmissible", because he had not, at the time of the complaint, exhausted his appeal route in Canada.
Following his return to the United States, Peltier was convicted by a jury of both counts of murder and sentenced to two consecutive life terms. His appeal from these convictions to United States Court of Appeal was dismissed on the merits. Certiorari to the United States Supreme Court was denied. In 1982, Peltier sought a new trial based on newly available evidence received through a freedom of information request. The United States District Court and subsequently the Court of Appeal dismissed his motion on the merits. Once again, certiorari to the United States Supreme Court was denied. In December 1993, the Eighth Circuit Court of Appeals dismissed his third appeal for a new trial. On this last appeal, fifty-five Canadian Members of Parliament filed an amicus curia brief on his behalf. The Canadian MPs intervened independently. They did not represent the Canadian Government. The position taken by the MPs was that Peltier's extradition was fraudulently obtained.
The main subject of attack in the various appeals, including the intervention by the Canadian MPs, has been the alleged misconduct of the FBI and prosecutors in the USA. In particular, Peltier has attacked the "creation" and use by the United States Government of three affidavits sworn by Myrtle Poor Bear. Two of these affidavits, the second and third chronologically, were submitted to Canada in the extradition package for use in the extradition hearing. The submission to Canada of allegedly fabricated documents for use in our extradition process, coupled with the alleged suppression of the first Poor Bear affidavit, has been the basis for continued submissions to past Ministers of Justice that Canada formally seek the return to Canada of Leonard Peltier and support his position in various legal proceedings, including his application for executive clemency.
A review of the Peltier file follows.
Extradition hearing: May 1976
Peltier's extradition hearing took place over 18 days, commencing May 3, 1976 and concluding May 25, 1976. The hearing was conducted before Mr. Justice Schultz of the British Colombia Supreme Court sitting as the extradition judge pursuant to the provisions of the Extradition Act.
A. Role of the extradition judge:
Section 18(1)(b) of the Act governed committal. This provision requires a judge to issue a warrant of committal in the case of a fugitive accused of an extradition crime, "if such evidence is produced as would, according to the law of Canada, subject to this part, justify his committal for trial if the crime had been committed in Canada".
The Supreme Court of Canada in USA v. Sheppard (1976), 30 C.C.C. (2d) 424 had recently interpreted the test for committal of a fugitive as being whether or not there was any evidence on which a reasonable jury properly instructed could return a verdict of guilty. A judge, in accordance with this principle, was required to commit an accused person in any case in which there was admissible evidence which could, if it were believed, result in a conviction. In Sheppard, the Court went on to declare that the weighing of evidence is, as a matter of well settled principle, a role for a properly instructed jury and forms no part of the role of an extradition judge exercising his powers under the Extradition Act. This remains the law at the present time.
Accordingly, the United States of America had the onus of showing that there was sufficient evidence to establish a prima facie case that Peltier had committed the extradition crimes. Bill Halprin, counsel with the Vancouver Regional Office of the Department of Justice, appeared for the United States of America. Halprin called six witnesses and entered approximately 30 affidavits as evidence in support of Peltier's extradition.
Counsel for the fugitive called 10 witnesses. In addition, Peltier made an unsworn statement at the beginning of his case in which he requested that the court and the country grant him political asylum. None of the evidence introduced on behalf of Peltier related to the circumstances of the commission of any of the five alleged offenses. All of the evidence called by defence related to the alleged political nature of Peltier's case. This evidence was received under section 15 of the Extradition Act which allowed the extradition judge to receive evidence concerning the political nature of an offence for the future consideration of the Minister of Justice.
B. RESMURS Evidence:
A review of the evidence of the extradition proceedings confirms that two affidavits sworn by Myrtle Poor Bear, on February 23, 1976, and March 31, 1976, provided the only direct eyewitness evidence against Peltier with respect to the murders of the two Special Agents. Schultz J., in his reasons ordering extradition with respect to the RESMURS, described the evidence as follows:
"There is direct evidence relating to each alleged crime [RESMURS] contained in exhibit 18N, the affidavit of Poor Bear, sworn February 23, 1976 and exhibit 180, the affidavit of Poor Bear sworn March 31, 1976, her further deposition.
There is, in addition, circumstantial evidence comprising other affidavits of Ex. 18, which it is unnecessary to relate. "
In her February 23, 1976 affidavit, Poor Bear swore that:
-she had known Peltier since 1971 and was his girlfriend at the relevant time
-she was present at Pine Ridge as his girlfriend in June 1976 when Peltier and several others were planning the murder of US government agents who might come into the area
- on about the day before the agents were killed Peltier said he knew that agents were coming to serve an arrrest warrant on Jimmy Eagle and told people to get ready to kill them
-she said she was present and saw Peltier shoot the agents
-in August 1976 she met up with Peltier and they discussed his killing of the agents
In her March 31, 1976 affidavit, Poor Bear swore that:
-at 12:00 on the day of the murders Peltier came into the Harry Jumping Bull residence and said "they're coming"
-she walked up close to the agents car while the shooting was going on
-she saw Peltier shoot one agent who was standing against the car--the other agent was lying face down on the ground
-she screamed at him and hit him then ran away
After the extradition hearing, it became known that a third affidavit, preceding the others chronologically and contradicting them, existed. The existence of this affidavit became known to Peltier's extradition counsel only after it was disclosed to Peltier's co-defendants, Butler and Robideau, during the course of their prosecution on the murder charges in the United States. The third affidavit was provided by Poor Bear to FBI agents in the United States on February 19, 1976. It has been the position of Peltier's counsel, both in Canada and in the United States, that this affidavit is materially inconsistent with, and destroys the probative value of, the other two affidavits which followed it chronologically.
In the February 19, 1976 affidavit, Poor Bear stated that:
-she had known Peltier since 1971 and was his girlfriend at the relevant time
-she was present at Pine Ridge as his girlfriend in June 1976 when Peltier and several others were planning the murder of US government agents who might come into the area
- on about the day before the agents were killed Peltier said he knew that agents were coming to serve an arrrest warrant on Jimmy Eagle and told people to get ready to kill them
-at around that time she left the area of Jumping Bull Hall and did not return
-in August 1976 she met up with Peltier and they discussed his killing of the agents
In actual fact, the Poor Bear affidavit dated February 19, 1976 was consistent, if not identical, in most respects, to the Poor Bear affidavit of February 23, 1976. The material inconsistency was that in her February 19, 1976 affidavit she denied being present on the Pine Ridge Reservation at the time of the shooting. Therefore, according to the early affidavit, she did not witness the murders.
As stated above, in addition to the Poor Bear affidavits, circumstantial evidence implicating Peltier in the RESMURS was also entered at the extradition proceedings. Reviewing the file and assessing the circumstantial evidence available at the extradition is difficult because scant attention appears to have been paid to this material at the time of the hearing. This is not surprising given the nature of the direct evidence contained in the Poor Bear Affidavits. Submissions on the circumstantial evidence, supporting the theory of the United States Government, were brief. I have set out below the prosecution theory and a summary of the circumstantial evidence which supported this theory.
C. Theory of the United States Government at the extradition:
Special Agents Coler and Williams came under hostile fire while carrying out their duties in the area of Jumping Bull Hall on the Pine Ridge Reservation, at approximately 1 1:50 a.m., June 26, 1975. The agents were wounded by distant gunfire. Peltier executed the agents with an AR-15 semi-automatic rifle. The shell casing from one of the fatal shots was ejected from the murder weapon into the open trunk of Coler's car when the agents were finished off.
[the source of the evidence is noted in parentheses]
a) The autopsy showed that Special Agent Ron Williams had been shot three times. A high velocity missile that penetrated his face and skull directly contributed to his death. Special Agent Jack R. Coler was shot three times. One shot which entered under the chin had been instantly fatal. (Bloomendaal)
b) The personal police weapons of each officer had been taken from their bodies. (Wiley)
c) A ballistics expert examined thirty-six .223 calibre cartridge cases retrieved at the "general scene" of the murders. He concluded that they had all been loaded into and extracted from the same semi-automatic rifle of a model and type known to him as a Colt AR-1 5 which is a weapon of high velocity. The source of these thirty-six shell casings were as follows:
i) thirty- four .223 shells were recovered from Peltier's car;
ii) a single .223 cartridge case was recovered from a Chevrolet Suburban Red and White Van from which Peltier's fingerprint was lifted, and;
iii) a single .223 cartridge case located in Special Agent Coler's trunk .
d) Ballistics evidence based on the .223 shell casings located at the scene, in particular the shell casing located in the open trunk of Special Agent Colers' car, pinpointed the murder weapon as consistent with a semi-automatic rifle known as the AR-15, a weapon of high velocity. (Evan Hodge)
e) Peltier was observed by three eyewitnesses fleeing with three other men from the Jumping Bull Residence located approximately 200-250 yards away from the agents' bodies, in the general area of the shootout. All four men were seen to be carrying shoulder weapons, either a rifle or shotgun. (Stoldt and Coward)
f) Peltier's fingerprint was lifted off the rearview mirror of the 1966 Chevrolet Suburban Van in which one of the .223 casings attributed to the murder weapon was recovered(Lodge);
g) Peltier's car and the Chevy Suburban Van from which Peltier's fingerprint were lifted, referred to above, were located in the midst of a group of tents approximately 700 yards away from where the bodies were located.
h) Five months later, on November 15, 1975, highway police in the State of Oregon pulled over a motor home and Peltier was identified as one of the occupants. There were at least three other occupants in the motor home: a woman, two children and an unidentified individual. Peltier fled the scene, turning to fire on one of the police officers(Griffiths).
i) The motor home from which Peltier fled was searched. Special Agent Coler's service revolver was found in a bag bearing Peltier's thumbprint. Peltier's fingerprint was also lifted from the radio microphone mounted behind the driver's seat. Other weapons and ammunition was located in the motor home.(Zeller)
j) At approximately the same time that the motor home was pulled over, a civilian witness was parked nearby. He identified Peltier as the person who knocked on his car window and spoke to him shortly after the time the police officer said Peltier fled. The witness said that Peltier was breathing hard and asked for a ride. (Holmes)
k) Early the next morning a nearby ranch was broken into (Funk). A Jeep Ranchero and a Winchester 30-30 rifle were stolen (Barker). Peltier's fingerprints were found on the refrigerator inside the ranch. (Zeller)
l) The next day (November 17, 1975) the stolen Jeep Ranchero was discovered abandoned on the side of the highway(Olson). Peltier's fingerprint was lifted from the left front window. (Zeller)
m) On February 6, 1976, Peltier was arrested in a one room schoolhouse in Hinton, Alberta. The stolen Winchester 30-30 rifle was located in a pile of belongings in the room. Peltier's print was lifted off the rifle.
Taken at its highest, the case for the United States against can be summarized as follows:
The agents were found dead, Iying face down beside the drivers side of Coler's car. The front drivers side door and trunk of his car were open. The autopsy report concluded that a bullet fired from a high velocity weapon entered Williams' head and directly contributed to his death.
The shell casing recovered from the open trunk of Coler's car was identified as having been ejected from an AR-15 semi-automatic rifle, known to be a weapon of high velocity. Semi-automatic rifles automatically eject spent casings when fired. In order to have been ejected into the open trunk, the source AR-15 rifle must have been fired in close proximity to the car. The high velocity AR-15 is consistent with the murder weapon which fired the "high velocity missile" which according to the autopsy report, was used to execute Williams. Arguably, the inference can be drawn that the shell casing located in Colers' trunk was ejected from the AR-15, a high velocity weapon, when William's was fatally shot, and, that the fatal shot was fired at close range.
The shell casing located in Coler's trunk matched thirty-five other casings recovered at the scene which were examined by the ballistics expert. Thirty-four casings matching the murder weapon were recovered from Peltier's car and one was recovered from a van from which Peltier's fingerprint was lifted that was parked within 20 feet of Peltier's car. Both these vehicles were found approximately 650-700 yards from the agent's dead bodies.
Peltier was placed at the scene, in flight, in possession of a weapon consistent with the murder weapon by two eyewitnesses. The eyewitnesses identified Peltier carrying a shoulder weapon, either a rifle or shotgun, fleeing with three other men from a residence approximately 200-250 yards from where the murdered agents were located. The other three had similar shoulder weapons.
Peltier was fixed with possession of Colers personal police weapon that was removed from his body when he was murdered. The source of this evidence is the highway officer who identified Peltier as the individual who, five months later, fled from a motor home which he pulled over. Special Agent Coler's personal police weapon was located in the motor home in a brown paper bag. Peltier's fingerprint was lifted from the brown paper bag and the microphone above the driver's side. This also provides further evidence of flight.
Decision of the Extradition Judge
On June 18, 1976, Schultz ordered Peltier extradited on four of the five charges, including the two murders. He did not find sufficient evidence to extradite on the charge of attempted murder relating to the shots fired at the police officer who pulled over the motor home in Oregon. As noted above, he found that there was direct evidence of the murders through the Poor Bear Affidavits, as well as circumstantial evidence. He delivered extensive reasons (92 pages) for his decision covering a wide range of issues, including:
a) the proper test for committal
b) sufficiency of evidence on all counts
c) admissibility of identification evidence
d) Canadian Bill of Rights
e) jurisdiction of an extradition judge to consider evidence of alleged political nature of offences
In coming to his conclusion to commit Peltier on the murder charges, Schultz expressly rejected the following written submissions by defence concerning the inconsistencies in the two Poor Bear affidavits:
a) when viewed together [the inconsistencies] so discredit the evidence of Myrtle Poor Bear as to make it unreliable and negligible in probative value;
b) is submitted that her evidence does not meet the required standard of proof necessary for the finding of a prima facie case.
In rejecting these submissions, Schultz found that it was not the function or duty of the Extradition Judge to assess credibility of witnesses or determine the weight of evidence. He quite properly states that this duty or function should be left to the tribunal of fact, either Judge or jury. Although one cannot second guess the judge, it is not unlikely that he would have treated submissions concerning the February 19, 1976 affidavit in the same manner.
In his reasons Schultz made it clear that he did not consider the evidence put forward by defence in coming to his conclusion. He found that, although he had a duty to receive evidence concerning the political nature of the offence, he had no jurisdiction in his role as extradition judge to consider this evidence. He held that the consideration of the political character of the offence was part of the role reserved for the Minister of Justice.
Myrtle Poor Bear was not called by the prosecution as a witness against Peltier in his murder trial. When defence attempted to call her to support the defence theory of an FBI frame-up, she was found by the judge to be an incompetent witness whose testimony was too confused and incredible to be considered admissible. The United States prosecutors took the position that they had decided not to call her because of her emotional state and the fact that no other witness present on the Pine Ridge Reservation on the day of the murders could place her at the scene. The Poor Bear affidavits are attached at Appendix 1 to this review.
Federal Court of Appeal: October 25-27, 1976
a) Preliminary motion to enter fresh evidence:
The appellants sought leave to introduce the February 19, 1976 affidavit of Myrtle Poor Bear as fresh evidence on the appeal. According to Peltier's affidavit filed in support of the motion to introduce new evidence, the February 19, 1976 affidavit came to light when it was disclosed to defence counsel in the United States during the trial of Peltier's two co-accused, Robideau and Butler. Peltier's counsel took the position that had this affidavit been entered on the extradition hearing, it might reasonably have induced the court to change its view with respect to the committal order on the first degree murder charges. It was asserted that the affidavit would have confirmed the absence of Myrtle Poor Bear on the day of the murders and completely have destroyed the evidence in her other two affidavits. In addition, it was Peltier's position that the "suppressed" affidavit showed Government misconduct on the part of the attorneys in the United States by wilfully withholding and suppressing this information to Peltier's detriment.
The motion was dismissed.
b) Section 28 Appeal
In written argument, the two Poor Bear affidavits entered at the extradition hearing were extensively canvassed. In particular, all inconsistencies were addressed. It was asserted that the February 23, 1976 and March 31, 1976 Poor Bear affidavits, were tendered to present the strongest case on the murders, and together were the only evidence inculpating Peltier in the murders. Peltier's counsel argued that the fundamental internal inconsistencies in the affidavits rendered the evidence worthless and that the other evidence led by the United States, which could only be considered as corroborative, in no way redeemed or rehabilitated the essential deficiencies of the Poor Bear Affidavits.
The Court had before it the record of the extradition proceedings, and, the written
argument of counsel. Additionally, they heard "extensive" submissions from counsel. Based on the foregoing, the Court concluded that there was no sufficient cause or reason to to set aside the warrant of committal issued by Schultz on June 18, 1976. Accordingly, the appeal was dismissed.
Appeal to the Minister of Justice: November 1976
Following the dismissal by the Federal Court of Appeal, Counsel for Peltier and four native representatives made written and oral submissions to the Honourable Ron Basford, Minister of Justice concerning the political character of the offenses with respect to which Peltier's extradition was sought.
i) Submissions to the Minister:
The oral submissions were transcribed but could not be located for this review. The written submissions and numerous appendices, contained in a brief of approximately 150 pages, included: Peltier's personal history, the history of the American Indian Movement, the relationship of AIM to the US government, allegations of American government misconduct towards AIM, and the law on offenses of a political character.
Cited as the most glaring evidence demonstrating the U.S. Government's misconduct was the use of the testimony of Myrtle Poor Bear to justify the allegations that Peltier was involved in the murder of the two FBI agents. Defence counsel submitted that this evidence was of critical significance since it was the only evidence inculpating Peltier in those offenses. It was argued that the first affidavit was suppressed intentionally because it contradicted and, therefore, destroyed the credibility of the second two affidavits. It was also asserted that the second two affidavits must have been known by the drafter to contain perjured evidence and were submitted to Canada for use in the extradition, regardless of this fact.
ii) evidence from extradition hearing:
The Minister had before him all evidence tendered at the extradition hearing. This included transcripts of all evidence called by the defence relating to the political nature of the offence. In addition, the Minister had a summary of the transcripts of the witnesses called on Peltier's behalf at his extradition hearing which had been prepared in November 1976, at his request. A copy of the summary is attached as Appendix 2 to this review. As stated earlier, all the evidence called by Peltier at the extradition related to the alleged political nature of the offence. The following witnesses testified on his behalf at his extradition hearing:
- the International Field Director of AIM
- residents of Pine Ridge, including one whose son was killed at Wounded Knee
- the National Chairman of AlM, also a political science lecturer at San Francisco State University
- members of AIM
- an expert in American prison law concerning treatment of natives in the penitentiary system
- an attorney and member of the Wounded Knee Defence Committee
- an American penologist and correctional systems administrator
The testimony of these witnesses related primarily to the rise and development of AIM, its purposes and the difficulties it has encountered, and the situation at Pine Ridge between 1972 and 1976 between rival native factions and with the United States government.
iii) correspondence to the Minister from interested parties:
In addition, the Minister had received a steady stream of correspondence from individuals, groups and associations from around the world, all writing on Peltier's behalf. Demonstrations were held in Ottawa, British Columbia and the United States in an effort to dissuade the Minister of Justice from signing the order surrendering Peltier. Allegations of FBI misconduct in relation to the Poor Bear affidavits, Wounded Knee and Pine Ridge were set out in detail in many of the letters. Allegations of FBI misconduct and hints of Canadian government complicity were also prevalent in the press at the time.
Executive decision to extradite
On December 17, 1976 Ron Basford issued a press release setting out his reasons for ordering Peltier's extradition. The following issues were dealt with in his reasons:
a) Alleged inconsistencies in the Poor Bear affidavits: This issue was found to be a legal matter for the courts which had been dealt with in Canada and would, undoubtedly, be dealt with in the US courts.
b) Alleged misconduct of the FBI and Bureau of Indian Affairs ("BIA"): it was stressed that it would be the courts, not these agencies, who would try Peltier.
c) American due process for Peltier : No evidence was presented that demonstrated that Peltier would be denied his constitutional rights in the
United States. Some reliance was placed on the jury's acquittal in June 1976 of Peltier's two co-defendants, Robideau and Butler, on the same charges.
d) American due process for Native Americans: Again, some reliance was placed on letters from the United States prosecutors to the Minister suggesting that the acquittal of the two co-defendants, both Native Americans, by a jury belied any claims of inherent bias in the American justice system against Native Americans. There was also evidence before the Minister that other AIM leaders who had faced criminal charges in the United States had received fair treatment
e) American Assurances: The Minister had sought and received the assurance that if Peltier was convicted of murder, he would not be executed. Additionally, the Americans had presented a diplomatic note to Canada assuring Peltier's personal safety and that he would not be tried for any offences other than those on which he had been extradited, in keeping with the rule of specialty.
f) Political character of the offense: It was not demonstrated on all the evidence before him that the two murders, the attempted murder or the burglary with which Peltier had been charged were offences of a political character. Nor had it been established that the proceedings in question were taken with a view to try or punish Peltier for an offence of a political character.
Supreme Court of Canada: June 1989
In May 1989, Peltier sought leave to appeal to the Supreme Court of Canada and brought an application for an extension of time to appeal and an application to file fresh evidence. The appellant's grounds were that:
1. The Federal Court of Appeal erred in finding that the extradition judge had sufficient evidence to support an extradition Order;
2. The Federal Court of Appeal erred in refusing to admit further evidence available at the time of appeal that established that the respondent had obtained the Order extraditing the Applicant by material non-disclosure of relevant evidence and fraud;
3. Substantial new evidence was now available which was not available at the time of the appeal hearing to establish that the respondent obtained the extradition order by material non-disclosure of relevant evidence and fraud.
It was the appellant's position that this new evidence referred to in paragraph 3 above, established that cogent physical evidence linking the appellant to the two murders was of no probative weight and this might reasonably have affected the decision of the extradition judge. In addition, they asserted that the new evidence would show government misconduct on the part of the attorneys in the United States by wilfully withholding and suppressing the information to his detriment. It was alleged that the "false and discredited direct evidence of Poor Bear was knowingly obtained and presented by agents of the United States government in order to buttress an insufficient case for extradition". The new evidence was also said to weaken the circumstantial evidence presented at the extradition.
Extensive materials were filed on appeal including a documentary videotape on the Peltier case and materials received in the United States of America pursuant to Freedom of Information requests by Peltier and his supporters.
The leave application was dismissed after an oral hearing. Although no transcript of the hearing was available for review, file notes show that during oral argument, Laforest J. observed that any effective extradition arrangement requires good faith and suggested that the Poor Bear episode raised questions about the bona fides of the extradition process. However, he concluded that the issue involving the Poor Bear affidavits was, in the circumstances of the case, one for the Parties to the extradition arrangement and not for the Courts.
A review of the Appellant's brief does not demonstrate new evidence which weakens the circumstantial evidence led at the extradition hearing.
Civil Proceedings in Canada:
Halprin v. Sun Publishing (1978) 4 WWR 685
In 1978, Bill Halprin sued Sun Publishing for libel with respect to an article published on April 18, 1978 entitled Ottawa "an Accomplice" in Conviction. The article, published on the heels of Peltier's conviction, stated, inter alia, that the Canadian government was an accomplice of the United States government in a "miscarriage of justice". Among other things, the article expressly stated that:
"State involvement in this case, both in Canada and the United States, has been marked by government misconduct from its inception. The Canadian government through the involvement of the justice department, has been complicit in this misconduct by the American State and the FBI [concerning Peltier's extradition "
Halprin took the position that he had been personally accused in the article of suppressing evidence he knew to be vital and therefore claimed that he had suffered damage to his reputation. He claimed to have been personally identified in the article because he was known to have acted as counsel for the United States on the extradition. In his action, he asserted that he was not a party to and knew nothing about the alleged fabrication of the Poor Bear affidavits.
Ultimately, Halprin's action was dismissed by Anderson J., of the British Columbia Supreme Court, who found that Halprin had been unable to prove on the balance of probabilities that the article personally identifed him. Anderson J. had the following to say about Halprin's conduct as counsel on the extradition [ @ 691]:
" it is clear beyond all doubt that the plaintiff had no knowledge whatsoever of any suppression of evidence, or of any misconduct on the part of anyone. It is also clear that the plaintiff has a reputation at the bar, and with those who know him, as being a person of the highest integrity. He has always acted fairly, honestly and in a straightforward manner, and in strict conformity with the ethical standards required of a prosecutor."
Peltier--Submissions to United Nations
On October 17, 1976, Elizabeth Clark , a Canadian citizen filed a complaint against Canada with the United Nations Human Rights Commission on Peltier's behalf. On November 26, 1976, Rosenbloom and Rush, Peltier's Canadian extradition counsel filed a complaint on Peltier's behalf. On December 4, 1977, Peltier, represented by Mr. Bustillo, made submissions to Human Rights Commission from prison. Subsequent communications were made by Peltier on March 20, July 6, July 14, and August 25, 1978. All communications were amalgamated and dealt with together.
In these complaints it was alleged that:
a) Peltier was unlawfully extradited from Canada to the United States on the basis of false evidence, fabricated either by the United States law enforcement agents in collaboration with Canadian Government Officials, or by a Canadian Government official who, in accordance with an administrative arrangement between the Governments of Canada and the United States of America, assisted the latter Government during the extradition proceedings;
b) his extradition was unlawful, inasmuch as he claimed that the Government of Canada should have rejected the extradition request of the United States of America, since the alleged acts on which it was based, had taken place on the territory of the independent Lakota nation, whose sovereignty Canada has failed to recognize;
c) during his detention in Canada from February 6, 1976 until December 18, 1976 he was subjected to ill-treatment and denied the opportunity to properly prepare his case for the extradition hearing.
With respect to item a), it was specifically asserted that the extradition was not carried out in accordance with law but was secured through the use of false evidence, namely the Poor Bear Affidavits, and that this evidence was introduced with the connivance of the officials of the Government of Canada. Peltier's position was that, notwithstanding other evidence available, the "false affidavits" impacted on all the evidence presented at the proceedings in their entirety.
In its response to the allegations concerning the falsified evidence, the Government of Canada:
a) denied responsibility for the alleged false evidence introduced at the extradition hearing, and, took the position that any evidence adduced at the extradition was submitted by the United States; and,
b) rejected the contention that the Canadian civil servant who, for the purpose of the extradition, acted on behalf of the United States, had any part in the alleged fabrication of false evidence, or any reason to believe that the evidence adduced was false,
Canada’s position was expressly set out in its formal response to the United Nations Human Rights Commitee dated May 29, 1978, wherein it stated:
"It should be noted that, to the extent that the question of the evidence produced at the extradition hearing can be a subject of complaint under the Covenant, a submission that Canada rejects, such evidence was produced under the instructions and on behalf of the United States and Canada took no part in the alleged fabrication or falsification of evidence. Even though the agent of the United States for the purposes of Peltier's extraditon was an employee of the Canadian Department of Justice, he was not acting upon the instructions or on behalf of the Canadian Minister of Justice but under instructions and on behalf of the United States pursuant to an administrative arrangement between Canada and the United States in matters of extradition."
The decision of the United Nations Human Rights Committee holding that Peltier's communication was inadmissible was delivered on September 1, 1979. Peltier's complaint about his extradition, was found to be inadmissible because, by not seeking leave to appeal before the Supreme Court of Canada in 1976, Peltier failed to exhaust domestic remedies as required by the governing Protocol.
USA v Peltier -- Summary of the American decisions
USA v. Peltier(1977)
On April 18, 1977, Peltier was convicted by a jury of two counts of first degree murder. The case against Peltier was circumstantial, no eyewitness to the actual, final killing was produced at trial. He was sentenced to two consecutive life sentences.
According to subsequent appellate judgments, the defense theory at the trial was that shortly after the murders, agents of the FBI focussed on Peltier as a principal suspect and thereafter conspired to manufacture evidence against him, resorting to threats, intimidation, and subornation in an effort to secure his conviction. Essentially, the defence alleged an FBI frame-up.
At trial, Poor Bear was called as a defence witness and a voir dire was held to determine whether her evidence was admissible. The court ruled that her testimony was not admissible. [ A transcript of her testimony on the voir dire was entered by Peltier's counsel in the appellant's brief submitted to the Supreme Court of Canada and his complaint to the United Nations. This transcript has been reviewed and is available in the file.] In deciding that her testimony was inadmissible, the court said that:
"The Court noticed that this witness was under obvious great mental stress. She, her testimony was interrupted at least three times by an emotional reaction of some kind. [...] The Court observed that she had a complete lapse of memory on cross-examination relating to recent events. The Court is also taking into consideration the fact that this witness was not used in the presentation of the Government's case which defense seeks to impeach by her testimony, the three FBI agents who interviewed her were not used in the presentation of the Government's case [...]. And the Court concludes that the credibilty of this witness for any purpose is so suspect that to permit her testimony to go to the jury would be confusing the issues, may mislead the jury and could be highly prejudicial.
The following day, in clarifying his ruling on the admissibility of Poor Bear's evidence, the trial judge stated that:
" the offer of proof (of the testimony of Poor Bear) related to a collateral matter and under the Rules of Evidence is therefore inadmissible. If the witness as she testified yesterday were to be a believable witness, the Court would have seriously considered allowing her testimony to go to the jury on the grounds that if believed by the jury the facts she testified to were such that they would shock the conscience of the Court and in the interests of justice should be considered by the jury.
However, for the reasons given on the record yesterday the Court concluded the danger of confusion of the issues, misleading the jury and unfair prejudice outweighed the possibility that the witness was believable."
No issue was taken at trial with respect to Peltier's extradition from Canada.
USA v. Peltier, (1978), 585 F.2d 314
The Eighth Circuit Court of Appeal affirmed Peltier's conviction on direct appeal, rejecting Peltier's contentions that:
a) evidence was improperly admitted;
b) evidence designed to show that Peltier was the victim of an FBI frame-up was improperly excluded;
c) proposed instructions concerning the frame-up theory were improperly denied;
d) Peltier's extradition from Canada violated the Webster-Ashburton Treaty, an issue which was raised for the first time on appeal.
With respect to the extradition, Peltier contended that the evidence of criminality presented to the Canadian tribunal consisted of the false affidavits of Poor Bear, obtained by the government through coercion and deceit and known by the government to be false. He argued that the presentation of such evidence violated the treaty. The appellate court found (at 335), that it was not necesssary to review the claims of government misconduct in the extradition, since:
" under any standard, Peltier does not claim that he was extradited solely on the basis of the Poor Bear affidavits or that the other evidence presented to the Canadian tribunal was insufficient to warrant extradition. It is clear from a review of the trial transcript that other substantial evidence of Peltier's involvement in the murders was presented in the extradition proceedings, but the record of those proceedings was not made available either to the trial court or this court."
In its reasons the Court summarized the Government's case against Peltier, "at its highest", as follows:
1. The van that the agents followed into the Jumping Bull Compound was occupied by Peltier, Norman Charles and Joseph Stuntz;
2. At the time, Peltier had access to information that he was being followed by FBI agents. One of the occupants of the van, Norman Charles, had been picked up along with the two other AIM members, Anderson and Draper, by Coler and Williams the day before. The three had been transported to Pine Ridge in Williams' car, and were later released after the agents were informed that none of them was Jimmy Eagle.
3. Peltier had reason to believe that the agents were looking for him, rather than Jimmy Eagle. He stipulated at trial that there was an arrest warrant outstanding, charging him with attempted murder. Upon his arrest in Canada months later for the murders of the agents, Peltier remarked that the two agents were shot when they came to arrest him. He also made other incriminating statements.
4. Michael Anderson, one of the AIM members who was firing at the cars from one of the houses in the Jumping Bull Compound, testified that after both sides had been shooting at one another from a distance, and at least one of the agents had been wounded, he saw Peltier, Robideau and Butler standing down at the agent's cars. Peltier at the time was holding an AR-15. Shortley after he saw the three down at the agents' cars, he began to walk back to Tent City, a distance of about a quarter of a mile. When he arrived at Tent City, Peltier, Robideau, and Butler were already there, as was Williams' car. FBI agents who later searched the area recovered Williams' billfold on the ground near the junction of the roads leading to the houses and Tent City. It was at this junction that Peltier's van had stopped shortly before the firing commenced.
5. According to the Doctor who performed the autopsies, the agents were shot with a high velocity, small caliber weapon. Peltier's AR-15, the civilian counterpart of the M-16, was the highest velocity weapon fired that day. No other person was seen by any trial witness on June 26 with an AR-15. Peltier carried his AR-15 out with him when he and the other participants of the shootout escaped from the reservation and fled to the Rosebud Reservation, where they remained for some time before splitting up. Robideau, Charles and Anderson went south after leaving Rosebud. Anderson testified that he loaded their car with weapons, one of which was an AR-15, before they left So. Dakota. On September 10, 1975 the car exploded on the Kansas turnpike, and police recovered from the car the AR-15 the government contended Peltier used on the day of the murders.
6. Ammunition components linked ballistically to the same AR-15 were found at the crime scene. The ballistics expert was unable to fire the AR-15 because it had been damaged in the explosion on the Kansas Turnpike. However, he was able to remove the bolt from it, place the bolt in another AR-15, and test fire the replacement AR-15. The expert testified that a .223 cartridge casing found in the trunk of Coler's car had been loaded into and extracted from the AR-15. He also testified that a .22 calibre copper bullet jacket found in the ground underneath the bodies of Coler and Williams had rifling impressions consistent with the rifling of the barrel of an AR-15. There was no testimony to indicate that either Robideau or Butler was seen the afternoon of the murders with a weapon that fired .22 caliber bullets.
7. Wilford Draper, a member of the escape party that left Tent City the evening of the murders, testified that he overheard Peltier, Butler and Robideau discussing certain details of the murders on the evening of June 26, 1975.
8. Peltier was stopped by police months later in the State of Oregon. He fled the scene, turning to fire on one of the police officers. The motor home in which he was riding was searched, and Special Agent Coler's revolver was found in a bag bearing Peltier's thumbprint.
USA v. Peltier, (1979), 440 U.S. 945
In October 1978, Peltier applied for certiorari to the United States Supreme Court. Included in the grounds for appeal was that the extradition was based in part on fraud and the Court should exercise its supervisory power to enter an order in arrest of judgment. Certiorari was denied.
USA v Peltier (unreported)
Peltier was convicted of armed escape and being a felon in possession of a firearm after an armed prison break. He claimed that he fled because he feared that the United States government had arranged to assassinate him in prison.
USA v Peltier (March 1981)
[ Re: Escape] USCA (9th) Circuit released unpublished memorandum remanding Peltier for new trial on escape charges because they found that Peltier was unduly
restricted in cross-examining government witnesses.
USA v Peltier ( November 1982)
[Re: escape] USCA (9th) Circuit released decision that, pursuant to review of trial record and briefs submitted, that the trial court decision to cut short crossexamination of witness was beyond reasonable doubt a harmless error. The Court stated that even if the defense story of planned assassination was true, such facts would not present a lawful basis for participating in an armed jail break.
US v. Peltier, (1983), 553 F. Suppl. 890, 890, USDC Dakota du Nord
Peltier filed a motion with the District Court for a new trial following receipt by his counsel of documents from the government through the Freedom of Information Act. Peltier asserted that the newly discovered evidence indicated that the government engaged in deliberate deception of the Court and the jurors by the presentation of known false evidence and the suppression of exculpatory evidence in order to obtain a conviction. Peltier claimed that the non-disclosure of documents that were exculpatory violated the Brady doctrine, entitling him to a new trial.
In particular, the testimony of ballistics expert Evan Hodge, who provided key affidavit evidence at the extradition, came under attack. It was alleged that Hodge intentionally misled the jury or more probably perjured himself when he testified at Peltier's trial. The attack related to "conclusive" evidence given by Hodge that Peltier's AR-15 was the murder weapon. Hodge testified at trial that the .223 casing recovered form Coler's trunk had been loaded into and extracted from an AR-15 rifle which had been recovered, in damaged condition, after a car carrying several AIM members, exploded on the interstate in Kansas on September 10., 1975. His conclusion was based on a comparison of the microscopic characteristics of the extractor marks on the rim of the cartridge case which was conducted in late December/ early January 1976. His conclusion was described in a lab report dated February 10, 1976. He further stated that he could not reach a conclusion as the whether the AR-15 had actually fired the corresponding bullet from that casing because of damage to the firing pin.
The defence alleged that the new documents showed that Hodge had performed a firing pin test on the rifle and the crucial .223 casing located in the trunk of Coler's car in October 1975 which produced negative results. The source of this attack was a newly disclosed FBI teletype dated October 2, 1975, that read:
"Recovered .223 caliber colt rifle received from SA____________BATF, contains different firing pin than that rifle used at RESMURS scene."
The defence alleged that this teletype indicated that the bullet casings found at the RESMURS scene, including the .223 casing found in Coler's trunk, had been tested against the AR-15 and had come up negative. Such tests would have discredited Hodge's testimony that no conclusion could be reached from a firing pin analysis because of the damaged condition of the AR-15.
The accuracy of Dr. Bloomendaal's initial and subsequent autopsy reports and the non-disclosure of documents suggesting that it would have been impossible for the eyewitness who gave evidence of seeing Peltier flee the scene to have actually observed the scene were other issues raised relating to evidence tendered at the extradition.
The motion was dismissed on a review of the written submissions and the trial record, without a hearing. Judge Benson found that perjury was not shown and no reasonable doubt that did not already exist was raised as a result of the new information. With respect to the ballistics evidence, the court found that
evidence of the negative firearms test of October 1975 had been put before the jury as part of a report dated October 31, 1975, which was admitted into evidence. Benson J. concluded that the jury had heard conflicting evidence and had assessed the credibility of witnesses. The court also found that none of the alleged newly discovered evidence demonstrated a corruption of the truth seeking process by the government.
Absent the Poor Bear affidavits, Hodge's affidavit dated April 6, 1976, provided key evidence at the Canadian extradition hearing concerning the .223 caliber casing located in Coler's trunk. Specifically, he stated that:
a) on July 24, 1975, he received one .223 caliber cartridge case in an envelope marked "items recovered from Jack R. Coler automobile;
b) on July 5,1975, he received thirty four .223 cartridge cases in an envelope marked "items recovered from 1967 Ford Galaxie;
c) on July 5,1975, he received one .223 cartridge case in an envelope marked "items recovered from 1966 Chevrolet Suburban".
After examining all thirty-six .223 caliber cartridge cases, he was of the opinion that all had been loaded into and extracted from the same semi-automatic rifle of a model and type known to him as a Colt AR-15 semiautomatic rifle which is a weapon of high velocity.
In addition, there was evidence presented at the extradition that Peltier had been seen with a "shoulder weapon, either a shotgun or a rifle". A shoulder weapon (rifle or shotgun) was consistent with an AR-15 which was "conclusively" identified by Hodge as the murder weapon. No evidence conclusively linking Peltier to an AR-15 was presented at the extradition hearing.
Even accepting defence submissions that contradictory ballistics reports existed, this would only go to the issue of the credibilty of Hodge's testimony at trial but not would not affect the extradition.
USA v. Peltier, (1984), 731 F. 2d 550
USCA 8th Circuit. On appeal the court upheld the district court's rejection without a hearing of all of Peltier's charges other than the ballistics one. With respect to the ballistics evidence, the court concluded that the prosecution did withhold evidence favorable to the accused. The court of appeal remanded the ballistics issue to the district court for an evidentiary hearing. They directed the lower court to determine whether the non-disclosure of the ballistics evidence adduced in the lower court supported Peltier's contention that the Brady doctrine on disclosure had been violated, requiring a new trial.
USA v. Peltier, (1985), 609 F. Supp. 143 (Cour de district du Dakota du Nord)
The District Court held an evidentiary hearing and denied Peltier relief. The subject of the evidentiary hearing was the firearms comparison concerning the .223 shell casing located in agent Coler's trunk. The trial evidence was that an AR-15 had ejected a .223 casing which was located in Coler's trunk and Peltier was the only one firing a weapon that day which was capable of chambering .223 ammunition. The trial evidence created the inference that this shell casing was the result of one of the final three shots that ended the agents' lives.
In particular, careful scrutiny was given to the effect of the government's nondisclosure of the FBI teletype dated October 2, 1975, referred to above. It was the defence position that this teletype referred to all the .223 cartridge casings located at the RESMURS scene. The government contended that this referred only to the first seven casings examined which did not include the crucial casing recovered from Coler's trunk. Hodge testified that he examined the ballistics material according to his regular practise of testing material according to the order in which he received it and identified it. According to his evidence, he received the crucial casing in approximately the last group of materials submitted to him for
testing in the RESMURS investigation. As a result of its late submittal, the crucial casing was allocated an identification number in the 2000 range, with the first item submitted being allocated #1. Hodge testified that, for this reason, the crucial casing was not examined until early 1976, although it was submitted to him by no later than August 5, 1975.
In his detailed memorandum, Judge Benson held that the "October 2, 1975, teletype", evaluated in the context of the entire record, would not have changed the outcome of the trial. The court found that the teletype was in advance of, and substantially similar to, an October 31, 1975 report that was entered as evidence. The court concluded, after having seen and heard the ballistics expert, Agent Hodge testify, that he was a credible witness (@1152). The Court determined, based in large part on Hodge's testimony, that the disputed teletype did not refer to the .223 casing found in agent Coler's car, but to other casings found at the scene.
USA v. Peltier, (1986), 800 F. 2d 772
8th Circuit Court of Appeal affirmed the evidentiary finding of the district court that there was not a "reasonable probability" that the trial verdict would have been affected by newly disclosed ballistics evidence.
Hodge's testimony at the post-trial evidentiary hearing was carefully scrutinized. The court of appeal, disagreeing with the district court, found that the newly discovered evidence indicated Hodge may not have been telling the truth. The appellate court stated that Hodge's testimony that:
a) he had only examined a small portion of the submitted ballistics evidence, and that he had not got to the casing located in Coler's car until December 1975 or January 1976; and,
b) that he was not aware of any particular urgency connected with the casing, and had not received and priority requests.
was facially inconsistent with the newly disclosed evidence which included several teletypes from FBI officials and agents specifically requesting Hodge to compare submitted AR-15 rifles with the .223 casings found at the scene. The appellate court, in its reasons, pointed out that Hodge had ample reason to focus his attention on the .223 casing as early as the day after the killings when he was made aware that the two agents had been killed by a high-velocity, low-caliber weapon at close range. As well, they concluded that, Hodge knew by September 20, 1975, that the investigation had focussed on Peltier and an AR-15.
The court came to the following conclusion when making its determination of whether the new evidence indicating that Hodge may not have been telling the truth would probably have affected the verdict:
"When all is said and done, however, a few simple but very important facts remain. The casing introduced in evidence [from Coler's car] had in fact been extracted from the Wichita AR-15. This point was not disputed; although defence had its own ballistics expert, it offered no contrary evidence.
Independant evidence was called that identified the AR-15 as belonging to Peltier.
As a result of their conclusion that the casing was, in fact, extracted from the AR-15, the court found that in order to accept the defence arguments, they would have to find massive collusion on the part of the FBl concerning the discovery of the casing in the trunk of the car. In obiter, the court recognized that while there was evidence in the record of improper conduct on the part of some FBI agents, it expressed reluctance to impute even further improprieties.
In conclusion, the Court determined that there was a possibility that the jury would have acquitted Peltier had the records and data improperly withheld from the defense been available to him in order to better exploit and reinforce the inconsistencies casting strong doubts upon the government's case. Yet, they found that they were bound by the Bagley test requiring that they be convinced, from a review of the entire record, that had the data and records withheld been made available, the jury probably would have reached a different conclusion. They were not so convinced.
It's important to note that findings of credibility would not, on the Sheppard v. USA test affect the outcome of extradition.
Peltier v. USA, (1987), 484 US 822
Certiorari from 800 F. 2d 772 denied by Supreme Court.
Peltier v. Henman, (1991), 11991 WL 31248 (D. Kansas no 90-3528-R)
Peltier sought another review and made motion to have the review heard in Kansas rather than in the district court where he was convicted as required by the Rules. He claimed that: 1) the sentencing judge was personally biased; 2) this would avoid further delay; 3) new items of extrinsic evidence merit the excercise of the court's jurisdiction. District Court Judge Richard Rogers denied a bid by Peltier for new trial in Feb 1991. The court, in its reasons, stated that there was nothing in the record of the previous application for review to indicate that the
hearing was inadequate or that the sentencing court would refuse to consider any significant additional evidence.
Peltier v. Henman, (1993) 997 F. 2d 461 (Huitième Cour de circuit)
Peltier brought post conviction proceeding to set aside conviction on grounds that:
a) an alleged government admission during oral argument before this court in the appeal in the prior section appeal proceeding changed the government's theory of the case and eliminated the legal basis for his conviction;
b) the district court improperly refused to permit him to present evidence of self-defence;
c) the government engaged in serious misconduct in the case; and,
d) the government deliberately created an intimidating atmosphere at trial.
His appeal was denied.
49 Members of the Canadian Parliament filed amicus curia brief and presented oral argument challenging the legality of Peltier's extradition. The court declined to consider this issue because:
a) extradition is an arrangement between States and these MPs did not purport to act for the Canadian government;
b) Peltier was not challenging his extradition in this appeal;
c) the contention comes far too late. This court rejected Peltier's challenge to the extradition based on the falsity of the affidavits in affirming his conviction on direct appeal in 1978. The amici offered no justification for their delay.
Peltier v. Henman, (1993) (C.A.)
Peltier's petition for a rehearing and suggestion of rehearing before the full appellate bench was denied by the Court of Appeal.
Canada's Effort to have the "Poor Bear" Episode Explained
The Department of Justice, Canada, has, on an ongoing basis, taken steps to obtain an explanation from the United States government about the allegations surrounding the presentation of purportedly fabricated evidence to Canada for use in the Canadian courts.
Bill Halprin (deceased), the Department of Justice prosecutor who acted on behalf of the United States government in the extradition, maintained the position that, at the time of the extradition hearing, he was only aware of the Poor Bear affidavits sworn February 23, 1976 and March 31, 1976 which he tendered as evidence at the hearing. He claimed that he received the February 23, 1976 affidavit through the diplomatic channels as part of the original extradition package in late March 1976. Pursuant to instructions from Steve Harding, his group head at the Vancouver Regional Office, he advised the Americans that there was insufficient evidence in the affidavit. He received the Affidavit sworn March 31, 1976 subsequent to this communication. Halprin has stated under oath that he first learned of the February 19, 1976 Poor Bear affidavit from Peltier's extadition counsel in late 1976, shortly before Peltier's appeal to the Federal Court of Appeal.
Halprin made it clear over the years that had he known about the February 19, 1976 affidavit he would have introduced it at the extradition hearing along with the other two. It was his position that he would then have been in a position to argue that, even if she was not an eyewitness to the shooting, other material contained in the affidavits was sufficient to justify extradition, as found by the Federal Court of Appeal. The additional information included finding the personal police weapon of murdered agent Coler in the possession of Peltier, shells from the AR-15 in his car and in another vehicle on which Peltier's prints were located, the AR-15 being the same type of weapon used in the killing of the two agents, as well as two eyewitnesses who saw Peltier fleeing the scene, carrying a similar weapon.
It was Halprin's initial opinion that there was no attempt at concealing the February 19, 1976 affidavit. It was volontarily disclosed by the United States Attorneys during the trial of the co-defendants who were acquitted in July 1976.
In April 1978, during proceedings in the Eighth Circuit Court of Appeal, United States Attorney Steven Hultman gave evidence concerning the issue of the three Poor Bear Affidavits that has been interpreted by Peltier supporters as an admission of investigatorial, if not prosecutorial misconduct. Specifically, Hultman replied "yes" to the following comment from the bench:
"But anybody who read those affidavits would know that they contadict each other. And why the FBI and prosecutors' office continued to extract more to put into the affidavits in hope to get Mr. Peltier back to the United States is beyond my recognition"
On April 13, 1978, the following day, Peltier's appellate counsel wrote the 8th Circuit Court of Appeal asserting, inter alia, that Hultman's comments in oral argument amounted to an admission of misconduct. The response from the American prosecutors was immediate. On April 18, 1978, they wrote to the Eighth Circuit Court of Appeal:
"....We also feel that it is appropriate to state that we take great exception to Mr. Privatera' s reference in his letter to "admitted fraudulent conduct by government agents." The government has never conceded that Myrtle Poor Bear's allegations at trial concerning alleged threats and coercion by the FBI are true. In fact, we categorically deny they are true. What we conceded at oral argument is what we contended at trial and in our appellee's brief, namely, that Myrtle Poor Bear was indeed an incompetent and unbelievable witness. We also conceded that when viewed in context of the full investigation, her statements to the FBI that she was an eyewitness on June 26, 1975, are probably not true. We can only speculate as to the source of the information which she supplied to the FBI. Remembering that her statements to the FBI came relatively early in the investigation, the question of whether or not the Government should have spotted her incompetence at that point and not relied upon her statements in the extradition proceedings is one which cannot be finally answered on the record before this Court, and is a question which need not be answered to resolve the issues of this appeal.
Unfortunately, a copy of this response was not forwarded to Canada until 1993, despite requests by the Department of Justice for information concerning the allegations that the Poor Bear affidavits were knowingly fabricated and submitted to Canada for use on the extradition.
In August 1978, after having Hultman's comments brought to his attention along with the submission that they should be interpreted to find American misconduct, Doug Rutherford requested Halprin's comments on the allegations that the United States Department of Justice sought extradition on the basis of affidavit evidence known to be unreliable. As indicated above, Rutherford was not aware that the United States Attorneys had provided the clarification set out above.
In September 1978, Halprin responded by reasserting his position that he was not aware of the February 19, 1976 affidavit of Poor Bear until after the extradition hearing and his belief that, irrespective of the evidence of Poor Bear, there was other evidence which would justify extradition.
In March 1979, Doug Rutherford wrote to Murray Stein, Government Regulation Section, Criminal Division, United States, Department of Justice, asking that he determine the level of knowledge of American DOJ and FBI officials concerning the unreliabilty of Poor Bear at the time the second and third affidavits were submitted to Canada, and, the reason for withholding the first affidavit. This request appears to have been based, in part, on the comments made by United States Attorney Hultman to the 8th Circuit Court of Appeal and Halprin's continued assertion that he had no knowledge or involvement in any fabrication.
On June 1, 1979, Doug Rutherford was provided with copies of letters from officials with the United States Department of Justice and the FBI responding to Canada's concerns about possible misconduct concerning Poor Bear's evidence.
United States Department of Justice response
Prior to responding, the United States Justice Department canvassed the prosecuting attorneys. Their views are set out below. The conclusion was that, at the time the affidavits were provided to Canada, Poor Bear was believed to be a credible witness. However, they were unable to explain how it was decided that the February 19 affidavit would not be submitted. It was speculated in the letter that it could have been because this affidavit was partially repudiated by Poor Bear in her subsequent affidavit. It was pointed also out that the February 19 affidavit was not authenticated.
Robert Simka, a US Attorney on the prosecution team, took the position that the affidavits were not completely contradictory. According to him, in the first affidavit, Poor Bear minimized her knowledge of the crime, but when later pressed for details, she revealed that she had much greater knowledge and involvement. He pointed out that this was typical of people involved in criminal activity. He also asserted that at the time the three affidavits were prepared, he believed that Poor Bear was a credible witness that he had every intention of using at trial. It was only after the extradition hearing, during his preparation for the trial of Peltier's codefendants, that he determined that Poor Bear would not be called as a government witness. The decision was based on his observation that she was emotionally out of control.
Hultman, was also interviewed concerning the Poor Bear affidavits. Hultman stated that his comment to the Judge during the course of the appeal was misleading". He agreed that Poor Bear was an unreliable witness, if a witness at all. However, he stated that he only came to this conclusion after the extradition hearing when no other witness at the RESMURS scene was able to place her at the scene.
The FBI also provided a letter responding the the government of Canada's concerns. In his letter dated May 10, 1979, Ronald Moore, Assistant Director, FBI, stated that all three Poor Bear Affidavits were volontarily furnished and taken in good faith. At the time the three affidavits were furnished, it was believed that Poor Bear was totally reliable and mentally stable. The inconsistency between the first affidavit and the subsequent two affidavits was believed to be the result of her initial reluctance to fully cooperate because of her legitimate fear for her own personal saftey. He claimed that the time the two affidavits were submitted to Canada, it was believed that they were accurate and from a reliable mentally stable witness.
However, he expressly stated that Halprin was aware of the contents of all three affidavits, and he was the reason the third affidavit was furnished. It was also claimed that it was on Halprin's recommedation, with concurrence of Special
Prosecutors Hultman and Sikma that only the second and third were used in the Canadian extradition hearing.
On June 7, 1979, Bill Halprin was asked by Doug Rutherford to respond to the FBl's allegation that he was aware of all three Poor Bear affidavits at the outset of the Peltier's extradition hearing. Halprin responded in a letter dated June 12, 1979, stating that the first time that he received an Affidavit from Myrtle Poor Bear was when the same (the February 23, 1976) was attached to a letter from AUSA Bruce Boyd dated March 22, 1976.[........] He said that he was not aware of the first affidavit of Poor Bear dated Feb 19, 1976 until the hearing before the Federal Court of Appeal when Counsel for the fugitive tried to introduce the same as fresh evidence. Accordingly, he asserted that the statement that "Halprin was aware of the contents of all three affidavits" is incorrect, but the latter part of the sentence, " in fact, he was the reason Myrtle Poor Bear furnished the the third affidavit..." is correct. He explained he did advise the United States that he needed more information and that the impetus for this action was his director's (Steven Harding) written instructions to him". Halprin concluded by stating his opinion that the FBI was "covering up" the suppression of the first Affidavit.
Again, on June 28 1979, Rutherford contacted the United States Justice Department and asked for them to address the issue of the Poor Bear affidavits in light of Halprin's comments about an "FBl cover-up" and his assertion that the FBI had provided an explanation that was factually incorrect. Rutherford was advised that his query had been passed on to the FBI and the United States District Attorney, South Dakota for a response.
Neither the South Dakota District Attorney Office nor the FBI were forthcoming with further information or explanations. On January 29, 1980, the FBI advised that they had no additional comments as the previous response (the May 10, 1979 letter) was as accurate as possible and based on the recollections of their agents and a review of their files.
In late 1983/early 1984, Peltier's case once again became the subject of the media when he filed an application for a new trial based on newly disclosed FBI documents received pursuant to a freedom of information request. The application alleged further misconduct by the FBI, including allegations of material nondisclosure of exculpatory evidence and FBI misconduct concerning ballistics evidence
In mid-1984 Rutherford wrote the United States Office of International Affairs ("OIA") asking for an update on the new allegations that prosecutors admitted to the United States Court of Appeal that the Poor Bear affidavits were fabricated. The OIA responded that the files had been misplaced and a response would be forthcoming as soon as possible.
In August 1986, in the face of a mounting campaign put on by Peltier supporters to the Minister of Justice with the objective of obtaining full recognition that Peltier was the subject of a miscarriage of justice in his prosecution and conviction, Rutherford again requested information from the Americans. He advised the Office of International Affairs that it was difficult to respond to the legal and factual assertions in the absence of a clear understanding of the issues being pursued in the United States and requested any information available to assist.
In his letter, he stated that he was soliciting assistance notwithstanding that "no satisfactory explanation, and in fact no explanation at all was ever forthcoming" in response to Canada's enquiries in to how the conflicting Poor Bear affidavits were relied on by US authorities and forwarded for use in the Canadian Courts. This, of course, ignores the earlier responses which were provided to Canada. For the most part these explanations were timely and reasonable. Mr. Rutherford acknowledged this in a subsequent letter.
In June 1989, the Supreme Court of Canada, in dismissing Peltier's appeal, commented that the issue involving the Poor Bear affidavits raised questions about the bona fides of the United States in the extradition process. Doug Rutherford wrote Drew Arena, Office of International Affairs, Criminal Division, outlining the comments made by the Supreme Court of Canada, wherein they questioned the bona fides of the Americans, and requested a further review. He stated that Canada viewed the matter of the production of the Poor Bear Affidavits as " requiring examination" with respect to determining how such unreliable evidence was produced for use in the Canadian extradition process and to ensure it did not recur.
Rutherford was subsequently advised that the matter had been referred to the FBI for a review of any investigations into the allegations of false evidence, in order that Canada's concerns could be fully addressed.
In the interim, in June 1990, the National Law Journal published an article claiming that the prosecution and the FBI had admitted that the Poor Bear affidavits were fabricated. More particularily, it stated that "after the evidentiary hearing, upon return to the Eighth Circuit, on October 15, 1985, prosecutors made startling admissions during oral arguments, among them they admit that the affidavits used in the extradition hearing were fabricated."
Rutherford immediately wrote to the Office of International Affairs, expressing his concern and requesting an explanation. In response, he was provided with two responses of Lyn Crooks, one of the original prosecutors, who had also appeared on behalf of the United States on the Peltier appeals. One response was a copy of Crooks' June 29, 1990 letter to the National Law Journal wherin he stated:
"We have never "admitted" that the affidavits used in the extradition were fabricated. In discussions with Judge Ross, Mr. Hultman conceded that if indeed the FBI interrogated witnesses they knew to be incompetent that would be wrong. That was all that was conceded. We never fabricated evidence and neither has the FBI. If the facts in Miss Poor Bear's affidavit were false, as it appears they probably were, it was because she lied about her role. We certainly recognised by trial time that she could not be called as a witness for the government. Her incompetence was the stated reason she was not permitted to testify for the defence."
In his August 2, 1990 letter responding to Canada's concerns, Mr. Crooks asserted that the most that can be said is that they [the prosecutors] conceded was that a serious issue was raised as to the judgment of repeatedly interviewing an incompetent person. He added, that the issue was, of course, whether Poor Bear was as obviously incompetent when she was interviewed initially as she was at trial. He states his belief that he doubts that she was.
Canada requested the Americans respond yet again after Judge Heaney, one of the appellate court judges that heard two of Peltier's appeals, stated in a letter to an American Senator, dated April 18, 1991 that one ground for seeking clemency was that:
"the FBI used improper tactics in securing Peltier's extradition from Canada and in otherwise investigating and trying the Peltier case. Although our court decided that these actions are not grounds for reversal, they are in my view factors that merit consideration in any petition for leniency."
In August 1991, Mr. Crooks, responded to Canada's query and confirmed his earlier position that the Poor Bear affidavits were taken in good faith and there was no misconduct.
As late as January 1993, Canada has been advised by the Office of International Affairs that Lyn Crooks had been recently contacted whereupon he confirmed that his position vis-a-vis the Poor Bear episode was unchanged from his April 12, 1978 letter [to the Eighth Circuit Court of Appeal].
| Letter to me from Anne McLellan
Letter from Anne McLellan to Janet Reno
Canadian release of extradition information
Summary of Canadian extradition information
File review of the extradition
News release Dec. 17, 1976
Comments from Dennis Banks ref: Leonard
CNN/Time "show" about Leonard
LPDC comments about the CNN "show"
News article By PETER WORTHINGTON
Myrtle Poor Bear affidavits
SEND YOUR CLEMENCY REQUEST TO THE PRESIDENT
International Office of the Leonard Peltier Defense Committee