Monday, June 15, 2015

How Law Schools “Study” the Peltier Case

Of mainstay domestic liberal causes over the past decades, few loom as high, long, or loud as the grassroots campaign for a Presidential Pardon for Leonard Peltier. Convicted of killing two FBI agents on the Pine Ridge Indian Reservation, Peltier has always declared his innocence and has claimed that FBI misconduct played a significant role before and during his trial.

The bizarre shootout in question unfolded on June 26, 1975, when no one really knew who was shooting whom, or why. Leaders of the American Indian Movement (AIM) claim the FBI had been spying on a camp of their members in the area and had had big plans for taking them down, one way or the other. An AIM teenager named Joe Stunz was also shot and killed that day.

The FBI originally claimed the agents were simply trying to serve a warrant on a petty criminal (who wasn’t even in that area); someone fired a first shot; and the situation escalated. Transcripts of the agents’ radio chatter now indicate they were chasing a red vehicle into the area; three men were in the vehicle; and when the vehicle came to a stop in a grassy area near the AIM camp, the shooting commenced.

Peltier admits he participated in the shootout, along with others including two AIM members who in a separate trial were acquitted based on self-defense—Dino Butler and Rob Robideau. This acquittal aggravated already high emotions inside the FBI. Not only was the shootout tragic and pointless, but after the Indians got the best of the situation, Agents Ronald Williams and Jack Coler were executed point blank—not self-defense at all (although adequate provocation or "heat of passion" could have made this voluntary manslaughter).

On the other hand, during the first trial of Butler and Robideau, the jury heard evidence of a Tribal President named Dickie Wilson who had all but declared martial law on the Reservation with brutalities and hundreds of unsolved murders, presumably at the hands of Wilson’s aggressive police force—all with the latent blessings of the FBI, which did not intervene. As part of a slight-of-hand political maneuver during the aftermath of the shootout, Wilson also nonchalantly turned over a large piece of Reservation land known as the “Stronghold” or “South Unit” to the Federal Government (it was returned in 2012).

The burning unanswered question relative to Peltier’s case is who delivered those close range shots that finished off the agents. Journalist Peter Matthiessen very guardedly relates a story (included in a 60 Minutes report) that a red pickup truck full of explosives with three AIM supporters in it was the vehicle the agents pursued into the area, and that its driver delivered the mortal wounds in self-defense and panic when a delirious Agent Williams raised his gun at him. Robideau also relates this story in the documentary film, Incident at Oglala (1992), directed by Michael Apted, claiming he saw the red truck and occupants.

The problem is that Butler now claims Robideau’s story of a red pickup truck is a fake perpetuated by Robideau. He also insists that Peltier was not the one who delivered the fatal shots to the agents. Butler also claims he was asked by Robideau to go along with the red-pickup story, but refused.

That leaves much suspicion on Robideau as the one who might have ultimately killed the agents, but, in a case where a rigid justice system prevails, he was acquitted of those crimes on a self-defense theory. Robideau admits in Incident at Oglala that he was the one who fired a round that ricocheted oddly into Coler’s arm in such a way, that the arm was shredded, so that Coler was in the process of completely bleeding out, minutes from death, when he was executed. If Robideau was close enough to see his round hit Coler’s arm and claimed all along he was close enough to see who killed the agents, he would be a prime suspect, if the red pickup story is truly debunked. He also could not have been tried twice for the same crime, had he lived (he died in 2009).

Butler and Peltier both claim they had been at the AIM camp all morning. When they heard gunshots and noticed bullets landing close to them, they grabbed their rifles and headed off to the origin of the shots, returning fire.

Peltier’s lawyers claim that the FBI was so desperate to pin the murder of its agents on any convenient AIM suspect that false evidence was created, most notably in the form of a spent bullet casing from Peltier’s rifle that they claim was found in the trunk of one of the agents’ cars. Since the verdict against Peltier was handed down, new eyewitnesses have been produced by investigators claiming that Peltier even bragged about killing the agents.

As for all my law school experiences, the Peltier case came up only once. In my Evidence class, there were a couple of problems in the casebook (Fisher 3d, 167ff.) based on the “facts” of the shootout and an encounter Peltier and his entourage of AIM members had in Oregon with the local law while fleeing. In one of the problems, the editors inserted in square brackets that Peltier had been one of the three men in the red vehicle the agents pulled over (which Peltier denies).

Most importantly, the questions were worded in such a way that left out all reference to the controversies, depicting Peltier as a born killer on the lam. The two questions, which my class’s Witkins Award winner (i.e., the student with the highest grade in the class) answered “correctly,” involved the prejudicial effect of an outstanding warrant Peltier had at the time and the fact that the Winnebago he was riding in was filled with weapons, including bombs. These might be probative of the “fact” that after killing the agents, Peltier was ready to make one last suicidal stand against police—so said the Witkins Award winner.

I went around to members of my Evidence class afterwards and asked them if they knew further details of the Peltier case. None did.

An especially interesting fact not mentioned in the problems is that actor Marlon Brando owned the Winnebago the AIM members were riding in and loaned it to them to show his support. A fact like that would spoil the fantasy that the casebook was trying to create—our favorite movie stars do not mingle with homicidal maniacs, after all.

Not only was my law school attempting to depict Peltier as one of the most homicidal outlaws since John Dillinger, but the casebook had cherry-picked details so that the overall impression was distorted. At any time, the professor could have mentioned what the real controversies were, but never did.

Why would my law school take such a stand against a famous liberal cause and use a deceptive if not outright dishonest way of portraying it? My only answer is that law schools are not about depicting important legal controversies in the neutral light they claim to be painstakingly instilling into students. Instead, law schools brainwash students into believing among other things that liberal causes are silly, and that even when the legal system gets it wrong, some deserving reprobate gets locked up anyway.

Whether you agree with the AIM movement or not, Peltier is a victim of a legal system gone awry. A thorough study of Peltier’s case should be the first thing that all American law schools should be teaching young would-be lawyers today—thoroughly. Let them make up their own minds after all the facts are in, because it is a complicated case, but at least use all the material facts.

Meanwhile, there is no excuse for what this Evidence casebook did, and if there was a valid legal lesson to be learned that day in Evidence class about relevance and prejudicing juries, those practice questions could have been rewritten to leave Peltier’s name out of it. I’m left with the burning feeling that our American legal system is built upon a pack of lies, and that the first order of business for American law schools is to whitewash this so it can recruit people with the best of calculating brains, but the most indifferent of moral consciences.

Wednesday, June 3, 2015

RFK’s Ghost Still Haunting California

While I was in law school with nose glued inside dry case books, a sadly ironic drama unfolded. It was a California drama rife with injustice—the type of injustice law professors typically instruct students to ignore as delusions of the hoi polloi.

Early in 2012, the Attorney General of the State of California, Kamala Harris, found herself squished between a rabid pack of conspiracy theorists and those invisible forces (i.e., “them”) that run things in the world based on secret policies and undemocratic decision-making. Harris had submitted a court document on behalf of the respondents named in a Federal writ of habeas corpus filed by Sirhan Bishara Sirhan (b. 1944) back in the year 2000.

I took a seminar in habeas corpus, which the professor running it insisted is currently the most difficult area of law. So difficult, in fact, that such writs are routinely punted to roving magistrate judges, who presumably have more time than other Federal judges to bone up on and master all the intricacies.

The crux of the habeas corpus complexity lies in a 1996 law called the Antiterrorism and Effective Death Penalty Act (AEDPA). Even the most conservative students in my seminar had to admit that AEDPA has had the effect of suspending the writ, something the Constitution expressly prohibits, unless public safety requires it in times of insurrection or invasion.

Still, AEDPA does not apply to Sirhan’s writ, because his conviction became final in the 1970s, long before its enactment. On the other hand, this law provides that writs for older judgments like Sirhan’s should be filed by April 1997 (in essence, like the one-year statute of limitations that is normally invoked). Of course, filing Sirhan’s writ in 2000 clearly has made it barred by AEDPA’s explicit statute of limitations.

To overcome this bar, Sirhan’s lawyers have found a loophole around AEDPA, quoting a 1995 Supreme Court case, Schlup v. Delo. If Sirhan can prove he is actually innocent, the bar of the statute of limitations can be lifted.

As much as this may continue to be a glimmer of hope for Sirhan, he must still overcome the extremely high standard set in the Schlup test, which is to present new evidence showing that it is more likely than not that no reasonable juror could have found him guilty.

Sirhan’s ardent defense lawyers have always valiantly attempted to connect the dots of a half-century of conspiracy theorists. But to satisfy Schlup, they can only rely on “new” evidence, that is, evidence not presented at his trial during the early 1970s.

Most notably as “new” evidence, an audio recording by a Canadian journalist (Stanislaw Pruszynski) has been analyzed by now state-of-the-art technology showing that at least 13 shots were fired in the pantry at the Ambassador Hotel where RFK was assassinated. Sirhan’s gun only carried eight bullets.

Also “new,” another journalist and eyewitness (Nina Rhodes-Hughes) claims that a transcript of her “original statement” to the FBI of hearing only eight shots was falsified. She now claims that she initially heard a few of Sirhan’s shots to the left of her followed by a rapid fire of different shots to the right of her—12 to 14 shots in all.

Sirhan’s lawyers have also included a declaration by a psychology professor (Daniel Brown) and law professor (Alan Scheflin) stating the history of mind control experiments by the CIA and others, which included techniques involving hallucinogenic drugs and hypnosis, to “program” potential agents to follow orders once they were “activated” by a code word or gesture—the rich stuff that conspiracy theorists have been generously coloring their hypotheses with all along. The fact that Sirhan has always claimed to not remember the actual shooting, basing his guilty plea on his own admission that he nevertheless must have been the shooter, feeds this notion that he actually was “programed” to stand in front of the victim and start shooting while someone from behind actually fired the deadly shot. The coroner who performed RFK’s autopsy (Thomas Noguchi) in 1968 confirmed the fatal bullet entered the right mastoid only inches from the victim’s ear, uniquely tattooing it with powder burns.

In response, Harris’s document specifically debunks the actual innocence claim with these and several other points: 1) the Pruszynski tape has been analyzed by other sound experts differently; 2) Rhodes-Hughes new testimony is inconclusive; 3) Noguchi’s autopsy conclusions were available at trial, but simply not used; 4) even if further allegations that ballistic evidence was tampered with are true, they only offer “speculative inferences” about Sirhan’s actual innocence; and 5) the theories of Brown and Scheflin are “unreliable and speculative,” if not altogether “fantastic.” I even recall watching television news coverage of the filing of Harris’s document, including a young woman presumably from Harris’s office even suggesting that the crime is so old now, nobody really cares about it anymore.

In August 2013, a habeas corpus expert (Magistrate Judge Andrew J. Wistrich) wrote a 60-page opinion recommending that a motion by the respondent to dismiss Sirhan’s writ be granted. Earlier this year, in January, District Judge Beverly Reid O’Connell did just that.

At the end of the day, Harris nonchalantly steered her canoe through roaring white water, poising herself as a viable candidate in 2016 for U.S. Senator. Had she not buried the Sirhan matter as tidily as she did, she risked a barrage of bad press and political shenanigans, much as Jim Garrison did in the late 1960s as depicted in Oliver Stone’s movie JFK.

Moreover, Harris had to tow an official line dismissing conspiracy theorists as kooks that the law cannot bother with and affirming a bright and shiny reality that the well-groomed people running America’s government are privileged as they are because they see the truth of reality clearer. Going through law school should help you unravel the sophisticated ideas behind AEDPA and today’s habeas corpus law, but if you can't hack it, we cannot wait for you. Meanwhile, the bloody, awful event that was the public assassination of a man who probably would have been elected President in 1968 remains nothing more than an act of random and senseless violence by a disturbed individual.

Harris admittedly played good soldier, hardly working up a sweat, and creating the cosmetic appearance that all’s well in California, as long as nutcases like Sirhan remain behind bars and the so-called mysteries surrounding cases like his remain ignored. Why then do I feel that law as practiced today is no different than it has been for thousands of years: a hocus pocus and tap dance to get the hoi polloi looking the other way so that the king (or "them") can do the dirty work required to stay in power?

And isn’t this precisely what law school is teaching us? Hocus pocus and tap dancing?

And endurance. Almost 50 years later, the magic act continues as does the dancing.

I remember career day at my law school, when a representative from Harris’s office was sitting at a desk, available to students for light conversation about possible careers. In the most calm and unassuming tone I could muster, I told her I was very interested in the Sirhan case. She acted with alarm and said she didn’t understand what I was talking about and that there were no positions available at Harris’s office.

In fact, she was the only person at career day who was not cordial and pleasant to me. Is it then really so “fantastic” to believe that one code word can set someone off into a predetermined and choreographed behavior?

Alakazam and clickety clack.