Peltier case: shoot-out at Wounded Knee

WHEN Leonard Peltier, an American Indian Movement (AIM) leader, was tried for the 1975 slaying of two FBI agents on South Dakota's Pine Ridge Reservation, the case against him looked overwhelming. Myrtle Poor Bear, described as Peltier's girlfriend, stated flatly that she had seen Peltier kill the two men. And an FBI ballistics expert testified that the shell casings found at the scene of the killings were fired by Peltier's AR-15 rifle. Today, eight years later, that case looks much weaker. In language reminiscent of Judge H. Lee Sarokin's recent decision overturning the murder conviction of former top-ranking boxer Rubin (Hurricane) Carter, a federal appeals court has condemned the FBI for ``a clear abuse of the investigative process'' in Peltier's trial. That's a judge's way of describing the coercion of a key witness and the withholding of evidence that Peltier's rifle could not have fired the fatal shots. It is also why Peltier, li ke Hurricane Carter, deserves another day in court.

This isn't just an FBI shoot-out story; from the outset, Peltier's case has been bound up in the intricacies of tribal politics. During the early 1970s, the traditionalist AIM accused the elected Lakota tribal leadership of giving away big chunks of reservation land, as well as major oil and uranium deposits. Charges and countercharges turned violent. Between 1973 and 1976, 250 Indians -- mostly AIM members -- were killed at Pine Ridge.

The American Indian Movement saw these murders as another Wounded Knee massacre. In 1890, at the very same site, it was the United States Cavalry that had done the killing; this time it was Indians murdering Indians. An AIM occupation of Wounded Knee attracted national attention. It also attracted the attention of the FBI, which used SWAT-team tactics -- ``paramilitary operations,'' as the agency itself described the maneuvers -- against suspected AIM supporters.

Peltier was on the scene when the FBI agents were shot, and he admits that he fired at them. ``We were running up this hill and there was bullets flying by my head awful close,'' he said in a prison interview. ``I hit the ground. I had no other choice but to turn around and start firing back.''

But the agents weren't killed from a distance. They were blown away at close range. Nonetheless, the FBI, convinced that Peltier was one of those responsible for this latest Wounded Knee massacre, mounted the biggest manhunt in the agency's history to track him down.

The FBI got its conviction, and a sentence of two consecutive life terms, but there's good reason to question the credibility of its evidence. Myrtle Poor Bear, supposedly Peltier's girlfriend, recanted. She had not been at Pine Ridge during the shoot-out, she said; in fact, she had never even met Peltier. The FBI had forced the accusation out of her, Poor Bear claimed, by threatening the lives of her daughters and her.

More damaging yet to the agency's cause, a Freedom of Information Act lawsuit turned up a teletype sent by the FBI's ballistics expert to his superiors. ``Casings not identifiable with [Peltier's] AR-15 rifle,'' the teletype states. If that means what it says, it means that Peltier is innocent, as he has claimed all along. Yet this material was withheld from Peltier's lawyers during the trial.

The FBI has a different interpretation of the teletype. It insists that the ``critical'' shell casings hadn't been tested when the message was sent. That is certainly possible, even though it's hard to square with the fact that the agency had been reviewing all the available casings nonstop for several months.

Peltier's lawyers have tried to persuade trial judge Paul Benson to reopen the case, which is again before the Court of Appeals. Benson's off-the-bench remarks raise questions about his impartiality. His on-the-bench conclusions -- that the teletype could not have changed the outcome of the trial and that the FBI expert's flip-flop on the mysterious handwriting actually made him a more believable witness -- border on the incredible.

Meanwhile, Peltier claims to have been targeted for assassination while in prison. In 1979, saying that he feared for his life, he escaped but was caught. Those fears of assassination persuaded an appeals court to overturn his escape conviction. Just a few months ago a fellow inmate, Standing Bear, came forward to back up Peltier's story. In 1978, Standing Bear stated, two FBI agents offered him medical help and a shorter prison term if he would ``neutralize'' Peltier.

Did Leonard Peltier kill the two agents at Pine Ridge? The bungling of the trial makes it impossible to tell. That's why the Soviets have used the case to complain about American human rights violations. It's why Amnesty International, which rarely gets involved in domestic cases, has urged a new trial. It's also why 55 members of Congress have submitted a friend-of-the-court brief making the same plea.

The American legal system works remarkably well when it's willing to acknowledge its mistakes -- its tainted decisions -- and start over again. That's the happy ending of this chapter of the Hurricane Carter story. It's also the reason that a new trial in Leonard Peltier's case makes sense.

David L. Kirp is a professor of law and public policy at the University of California, Berkeley.