United States of America v. Leonard Peltier
File Review (May 1994)

L. Erin McKey
Counsel, International Assistance Group

Canadian Extradition Proceedings

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:

In her February 23, 1976 affidavit, Poor Bear swore that:

In her March 31, 1976 affidavit, Poor Bear swore that:

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:

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.

Circumstantial Evidence:

[the source of the evidence is noted in parentheses]

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:

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:

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.

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.

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 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:

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:

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.