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.


  1. I often wonder at the fact that Peltier got two life sentences and Butler and Robideau got off on self-defense. Is this all down to different judges?

  2. Absolutely. Two completely different trials. When Peltier was finally extradited from Canada, the new judge for his trial implemented much stricter rules and forbade introducing any information about the conditions on the Pine Ridge Reservation (martial law, unsolved murders, etc.). These conditions were a deciding factor in acquitting Butler and Robideau. Still, the FBI's main concern was (and still is) that it wasn't about who was firing back at the agents in the general shooting exchange(Peltier admits he did this), but who fired the close-range, coup-de-grace shots that ultimately killed the agents. Robideau very well could have been the one who did this, but was saved by self-defense in the first trial. This was the point that angered the FBI the most. The main issue with getting Peltier a pardon is whether the FBI retaliated after the first trial by falsifying evidence for the second trial that tried to show Peltier as the one delivering the fatal shots. Peltier's lawyers claim the evidence against him was fabricated.

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