Canada's Extradition File Review in the Peltier Case (1994)

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

L. Erin McKey
Counsel, International Assistance Group

Canadian Extradition Proceedings

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 Iying 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.

Circumstantial Evidence:

[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.

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