Snow Job

We explore what went down in the federal courthouse in Fargo to convince Leonard that he’d been railroaded into a life behind bars with help from author Louise Erdrich, filmmaker Kevin McKiernan, and attorneys Kevin H. Sharp and Bruce Ellison, among others. Hear how Peltier’s wrongful conviction was orchestrated by a hanging judge in cahoots with the FBI.

Transcript

S2 E13:  SNOW JOB

Leonard Peltier
There is no doubt in my mind or my people's minds you are going to sentence me to two consecutive life terms. 

You are and have always been prejudiced against me and any Native Americans who have stood before you. 

You have openly favored the government all through this trial, and you are happy to do whatever the FBI would want you to do in this case.

[MUSIC UP]


VO
That’s Emmy winner Peter Coyote recreating Leonard Peltier’s statement to Judge Paul Benson prior to his sentencing in Fargo, North Dakota, on June 1, 1977. 

After a six week trial it had taken a jury less than twelve hours to find the AIMster guilty of two counts of first degree murder. 

Before declaring his punishment, Judge Benson asked Peltier if he had anything to say to the court.

Instead of begging for mercy, Leonard used the forum to publicly excoriate the judge, sealing his opinions into the official transcript for posterity, while adding an exclamation point to one of the strangest sagas in American history.

Leonard Peltier
You are about to perform an act, which will close one more chapter in the history of the failure of the United States Courts, and the failure of the people of the United States to do justice in the case of a Native American. 

After centuries of murder, could I have been wise in thinking that you would break that tradition and commit an act of justice? Obviously not! 

I stand before you as a proud man; I feel no guilt! I have done nothing to feel guilty about! 

I have no regrets of being a Native American activist. Thousands of people in the United States, Canada and around the world have and will continue to support me to expose the injustices, which have occurred in this courtroom. 

No, I'm not the guilty one here; I'm not the one who should be called a criminal. 

White Racist America is the criminal for the destruction of our lands and my people. 

To hide your guilt from the decent human beings in America and around the world, you will sentence me to two consecutive life terms without any hesitation.

I honestly believe that you made up your mind long ago that I was guilty, and that you were going to sentence me to the maximum sentence permitted under the law. 

But this does not surprise me, because you are a high-ranking member of the White Racist American establishment, which has consistently said, "In God We Trust," while they went about the business of murdering my people and attempting to destroy our culture.

VO
You’re listening to LEONARD—a podcast series about Leonard Peltier, one of the longest-serving political prisoners in American history. I’m Rory Owen Delaney. 

And I’m Andrew Fuller. We’ve spent the last four years working to share Leonard’s story with a new generation of people: who he is, how he ended up behind bars, and why we believe he deserves to go free.

This is Season 2, Episode 13, “Snow Job.” In this chapter we explore what went down in the federal courthouse in Fargo, North Dakota, to convince Leonard that he’d been railroaded into a life behind bars.


Along the way we’ll talk to filmmaker Kevin McKiernan, paralegal Dave Tilsen, Oglala shootout survivor Jean Roach, author Louise Erdrich, and attorneys Bruce Ellison, and Kevin H. Sharp, among others.

For additional context we’ll be recreating Michael Apted’s conversations with Judge Edward McManus, WKLDOC attorney Ken Tilsen and AIMster Dino Butler from the official transcripts of the seminal Peltier documentary “Incident at Oglala.”

We’ll also be dramatizing the acclaimed English director’s interview with U.S. Attorney Robert Sikma to articulate the government’s version of events.  

We would’ve liked to offer the FBI’s take on the gross irregularities in Leonard’s case as a counterpoint to our discussion, but they declined our interview request.

The Feds don’t want to talk about Fargo but someone has to. 

Because Leonard’s trial ranks up there with some of the gravest legal injustices our country has ever seen, including the wrongful convictions of the Central Park Five, the West Memphis Three, and boxer Rubin “Hurricane” Carter. 

As we’ll show, the government’s case against Peltier was more than highly circumstantial, it was smoke and mirrors. Pure and simple. 

Like Tom Robinson in Harper Lee’s novel To Kill a Mockingbird, Leonard’s trial was marred by racism. 

So brace yourself, because for the next ninety minutes we’re going to document how Racist White America put their thumb on the scale, orchestrating Peltier’s defeat by empowering a racist judge and jury to decide his fate. 

The measures were extreme, disgustingly unethical and potentially even criminal. But that was the only way the government could win. And the Feds had to get to the W.

There was a lot riding on Leonard’s trial in Fargo. 

After the acquittal of Robideau and Butler in Cedar Rapids, Iowa, the pressure for results was mounting with every passing day.

Filmmaker Kevin McKiernan recalled the impact of the verdict.
Kevin McKiernan
The acquittal of Leonard's two co-defendants at the murder trial in Cedar Rapids, Iowa, which was presided over by Judge McManus just sent shockwaves through the Department of Justice. 
Killing FBI agents, and now somebody got away with it. They were really pissed off. Like how could this happen? And they had to do a heavy duty analysis, and they had some people in the upper echelons of the Bureau who did just that.

VO
The Monday after Bob and Dino were found not guilty, an FBI task force was assembled to break down the trial.

24 hours later, the job was done, and a seven page post-mortem was handed in on  Tuesday, July 20, 1976. 

The FBI’s dissection of the Cedar Rapids trial yielded a number of important recommendations that were implemented by prosecutors with devastating effect.

As the government’s blueprint took shape, a curious thing happened. 

On August 9, 1976, the Justice Department dropped all charges against Jimmy Eagle, making Leonard the lone target of the ResMurs investigation. 


Like Leonard, Dino, and Bob, Jimmy had been indicted on two counts of first degree murder in November 1975.

That was when attorney Bruce Ellison first began representing Dino Butler. 
Bruce Ellison
The government afterwards held a meeting at FBI headquarters with the special prosecutors. And they decided, according to their documents, that they basically either had to go after Peltier, or go after Jimmy Eagle.
So the government chose to go after Peltier. And I think, if I remember the words of the document right, it was: “to put the full prosecutive weight of the United States government against Leonard Peltier.”  


VO
The decision was strange, because it was Eagle, and not Peltier, who the FBI had been looking for in the days leading up to the Oglala firefight.

Eagle was the guy in the red pickup that Jack Coler and Ron Williams had allegedly chased onto the Jumping Bull ranch on June 26, 1975, initiating the violence.  


Michael Apted
So why Leonard? 

Robert Sikma
Peltier was a dangerous man. He said he looked forward to killing pigs, as he called it.

Leonard was a different individual than Robideau and Butler. Much more militant, much more dangerous. 

He was undoubtedly the leader. 

VO 
That was a dramatization of part of Michael Apted’s conversation with U.S. Attorney Robert Sikma, who assisted in the prosecution of Dino, Bob and Leonard. 

The two men had one hell of a contentious back-and-forth in the early 90s, so we’ll be dipping into this wellspring a few more times. 


What Mr. Sikma admitted is significant: 

The Feds went after Peltier because he held considerably more clout within the American Indian Movement and would constitute a greater kill than some punk kid with little or no connection to AIM like Jimmy Eagle. 

Jimmy was a nobody. So the government couldn't be bothered to prosecute him. Instead they channeled their focus to spearing the white whale, Peltier. 


According to the FBI, the main reason the government had failed their Cedar Rapids final was because the defense was able to establish the out-of-control climate of violence that existed on Pine Ridge.

The context had proven crucial to the jury’s acceptance of their self-defense theory. 

This had been accomplished by the introduction of key evidence including the testimony of FBI Chief Clarence Kelley and Senator Frank Church.

Evidence that was only allowed into court because the Honorable Edward McManus had overruled the objections of prosecutors. 

Evidence that had derailed the railroading of Dino and Bob in the opinion of the Bureau.

Michael Apted asked Judge McManus what he thought of the FBI’s assessment of the Robideau-Butler trial when they spoke in 1990. 

Michael Apted
This seems to me to be a pretty aggressive document, doesn’t it to you?


Judge Edward McManus
You mean the fact that it criticizes me? Oh, I’m kind of used to that! And I’m not intimidated by it. 

There was disagreement with some of my rulings, but I felt that any objections the government might have made as to relevant testimony was not in the best interests of justice. So I overruled them and permitted the testimony. 

I hope I didn’t leave the impression that I was favoring either side. My objective was to find the truth, and I didn’t have any big quarrel with the jury’s verdict. 

I felt it was justified.

Michael Apted
Did you at any time have any quarrel with the government’s methods?

Judge Edward McManus
Oh, I’m sure the FBI felt very deeply about this. 

Here two of their members had been murdered, and it was a tragedy. 

And it was a tragedy that I’m sure influenced the FBI and the prosecutors emotionally, because they’re United States Attorneys, and I’m sure they’d have more than a casual interest in ordinary prosecution here. 

So from these letters that you’ve handed me I would gather that that’s probably a normal reaction for somebody that loses a case that he feels very strongly about. 
VO
To parrot Judge McManus, the government had more than a casual interest in the prosecution of Leonard Peltier. 

But why didn’t McManus preside over Leonard’s trial? 
Peltier was indicted at the same time as Robideau and Butler, so shouldn’t he have gotten the same venue and judge as his co-defendants?

It’s a question that’s been nagging us for a while. And it was nagging Michael Apted too. 

Michael Apted
Now after the Cedar Rapids trial there was the Leonard Peltier trial, which you didn’t do. Were you surprised by that? 

Judge Edward McManus
Well, Peltier was of course indicted originally with Robideau and Butler. But when the case was transferred to me, I think all I got were just Robideau and Butler. 

I would have preferred to try all three of them at the same time. But Mr. Peltier was in Canada fighting extradition, and the judgment was that it would be many months before that could be resolved. 

And in the meantime Robideau and Butler were in jail, and I thought it best to proceed without Peltier. 

Michael Apted
Shouldn’t you have tried Peltier when the time came?

Judge Edward McManus
That I don’t know. Looking back through the records, recently I noted that Peltier was never transferred by Judge Bogue to me. So he retained control over the Peltier case, and I would think that he’d be the proper one to ask about why Peltier wasn’t assigned to me after the trial of Robideau and Butler. 

VO
Bogue was the federal judge in Rapid City who granted Robideau and Butler’s change of venue after the defense’s polling data suggested they couldn’t get a fair jury in either South Dakota or Minnesota. 

Bogue is also the man who took the Peltier trial out of the hands of Judge McManus. 

When Michael Apted asked McManus if he believed the government’s decision to remove the Peltier trial from his court was political, the judge offered no opinion on the subject. 

But it’s hard to view it as anything else. 

That’s because the Bureau made it clear in their analysis that Judge McManus’s so-called “woke” evidentiary rulings had greatly influenced the jury in Cedar Rapids. 


Although not stated outright, between the lines, it was evident that the FBI believed a new judge was needed to convict Leonard, so the government went looking for a replacement. 

In other words, they went judge shopping, which contrary to what you might have learned in high school civics, is actually fairly common in the American judicial system.

In the foreword to Jim Messerschmidt’s book The Trial of Leonard Peltier legendary criminal defense attorney William Kunstler cited two of the better known examples of judge shopping against Vietnam War activists in the Nixon era. 

But judge shopping didn’t die in the 70s. Like Elvis, it remains alive and well today. 

Especially in Texas, where the state attorney general filed his 26th lawsuit in two years in the same place – a dusty town of 200,000 off Route 66 in the Texas panhandle.

Amarillo, Texas, is “where rugged cowboy culture meets big-city sophistication,” such as the 72 ounce steak challenge at The Big Texan Steak Ranch.

To win, the entire meal must be completed in one hour without standing up or leaving your table. If anyone else touches your meat, or you become violently ill, it’s game over, and you’re out 72 bucks. 

While the steak challenge is a fine excuse to visit, it’s only part of the reason why the Texas AG favors the city so much. 

The other reason is because Amarillo federal court is the home turf of Judge Matthew Kacsmaryk, a religious whackjob who was appointed by President Trump in 2019.

We mention this here to underscore how vitally important a specific judge and venue can be in obtaining a favorable outcome.  


And to show the government isn’t above a little gamesmanship, especially when the stakes were as high as they were after the acquittal in Cedar Rapids. 

Leonard Peltier
They had to get a conviction. 

VO
This is a recreation of Leonard Peltier’s interview with filmmaker Michael Apted in 1991. Peter Coyote reads for Leonard.

Leonard Peltier
I mean, if they hadn’t won a conviction with me, their whole reputation and history of getting a conviction on anyone when their officers are hurt would have been totally destroyed. 

Plus the fact that the Indian story would have become of more interest. In what really was going on in that era. In what was happening in South Dakota and all through Indian Country. 

So they had to make sure that somebody was going to pay. Somebody was going to get convicted. And they were successful in that. 

VO
A win was a win. It didn’t need to be pretty. And it most certainly wasn’t that in Fargo. 

To say things got a little dark would be an understatement because the Leonard Peltier trial had about as much honor as a street fight. 

If one guy was hogtied, ball gagged and blindfolded, and the other dude has steel-toed boots, brass knuckles and a tube sock full of those giant single A batteries. 

Our point being this trial wasn’t just ugly. It was fugly. By design.


To come out on top, the government had to fight dirty. That’s why it was so critical that the Feds got Judge Benson to preside over Peltier’s trial instead of McManus.


So a liberal who had been selected for the federal bench by President Kennedy was replaced by a conservative who had been appointed by President Nixon.

Bruce Ellison
Judge McManus expected Peltier upon extradition to be continued under his jurisdiction, and that he would do the trial. 

VO
Bruce Ellison served as a junior attorney on the defense teams in both Fargo and Cedar Rapids.


Bruce Ellison
All of a sudden the case was administratively transferred by the processes from the U.S. Court of Appeals – with no, at least, official reason as to why – to Judge Benson up in Fargo, North Dakota. 

A very different kind of community than a white working class, although very conservative community in Cedar Rapids. It was a much more hostile community in terms of racial prejudice against Indian people. 

VO
Of course prosecutor Robert Sikma thought Fargo was a fine town when Michael Apted pressed him about the reason for the venue change.


Michael Apted
Do you think there was an element of racism in the choice of location for the trial?

Robert Sikma 
I don’t think so. That’s my opinion. 

Michael Apted 
There were no Native Americans on the jury.

Robert Sikma
Well, the other place where there would have been Native Americans on the jury would have been Rapid City, and the defense moved to remove the trial from that area. 

The people in North Dakota, in that area, were familiar with Indians, but their experience with Native Americans has been primarily a good experience, and they didn’t appear to me to be anti-Native American.

I thought that the relationship between Native Americans and people in that area, that urban area, small urban area, but urban area, was very positive as far as Native Americans are concerned. 

VO
Clearly Mr. Sikma wasn’t a history major. 

Otherwise he would’ve remembered a little thing called The Dakota War of 1862, which kicked off in Minnesota, just across the border from Fargo, North Dakota.

After the violation of yet another treaty by the U.S. government, Dakota warriors tried to drive the wasichu settlers out of the Minnesota River valley, killing hundreds and causing thousands to flee in the process.

But the Dakota were defeated, and the Feds sentenced 303 warriors to death, eventually hanging 38 Native Americans on the day after Christmas in Mankato, Minnesota. 

Our Lakota friend Edgar Bear Runner never forgave President Lincoln for the largest one-day mass execution in American history. 

And a lot of the descendants of the pioneers who were terrorized and killed by the Dakota in the summer of 1862 probably never forgave the American Indians either. 


Prosecutor Robert Sikma may not have believed that racism played a part in Leonard’s conviction in Fargo, but we know for a fact that at least one juror openly admitted to bias against Native Americans. 

The racist juror, Shirley Klocke, a trailblazing “Karen,” was exposed when one of her co-workers at Blue Cross Blue Shield publicly accused her of racial prejudice
during voir dire or jury selection.

Patricia O’Day
I hereby swear that on the 10th day of March, 1977, I, in the presence of two witnesses at a coffee break, heard Shirley Klocke say these words during our conversation about the imminent jury selection process in the Peltier case. 

She said, quote, “I am so prejudiced against Indians.” She also made this statement back in the office in more general terms. 

I swear this statement to be true, as I was prompted by no one to make this statement, and make it as a matter of principle to my own conscience.

Signed, Patricia O’Day, Witness to the conversation

VO
Ms. O’Day’s notarized letter, which was co-signed by two other colleagues, was received by the judge during the first few days of the trial.


Kevin H. Sharp
So you're into day three or so, and someone unaffiliated with the trial shows up in court at the courthouse with a note for the judge. I'd never heard of such a thing, it's so unusual. 

VO
That’s defense attorney Kevin H. Sharp, who served as a former federal judge for six years prior to representing Leonard.

Kevin H. Sharp
And so the trial is stopped. 

Then the court and the lawyers talk about it a little bit, this is clearly a problem. 

And as I'm going through it, I'm assuming here's what she's going to say. 

Either one, they misunderstood me, or two, I didn't say that, right? 
But that's not what happens. Let me read to you the transcript. 

The court says, "Mrs. Klocke, we asked you to come in to show you this statement. Do you care to make any response to that?" 

Mrs. Klocke, "Yes, your honor. I did say this, and, like I said in the court, that I would put all prejudice aside, and I would render a fair verdict, and I still mean that too.” 

And the court. “Okay. Thank you.”

Mr. Peltier's lawyers, Leonard's lawyers then say, “I would like to put a number of questions to the jury, your honor.” Court says, “You may.” 

And Leonard's lawyer says, "Do you understand that you will have to make a serious conscious effort to make sure that the opinion, which you have and expressed, does in any way come to play in this case because of the seriousness of the consequences?" 

Mrs. Klocke, "Yes, I do." Leonard's lawyer, "We're satisfied, your honor." 
And that's it. I just read you the entire transcript of the questioning of this juror. 
Literally, this woman is asked two questions about the most damning statement you could make in a trial like this. 

One of them was only, "Do you want to respond?" And the other was, “Well, can you still be fair?” And she says, “Yes.” 
Are you kidding me? 

VO
Kevin is flabbergasted because this whole episode represented a gross violation of Leonard’s rights. 
The Constitution is supposed to guarantee criminal defendants a fair and impartial jury, that is, unless the year is 1977, and you’re an American Indian Movement activist being trialed in Fargo, North Dakota. 
Leonard recalled the Shirley Klocke incident back in the 90s from Fort Leavenworth Prison. 

Leonard Peliter
There was a young lady, she was 27 years old, and I had bad vibes from her anyway. 

But one day in the trial her best friend came forward, and she said that prior to the trial starting, and before she even knew she was going to be on the jury panel, they’d sat down at their lunch break at their place of employment and discussed the case. 

And she had made a statement to her friend that I was guilty, you know. And her friend said, “Well, how do you know he’s guilty?” 

“Well, I’m reading all this stuff in the paper, plus the FBI wouldn’t arrest one of those Indians unless they were guilty.” 

So she said, “Well, you don’t like Indians, do you?” She says, “No, I don’t like Indians. They’re all drunks, and they’re all lazy.” 

My attorney Elliot Taikeff convinced me I should keep her on the stand, keep her on the jury, because she answered so quickly, admitted it so quickly, “Yeah, I hate Indians, I don’t like Indians.” 

He convinced me that she was going to try harder to prove that she wasn’t racist – because, you know, they asked her the question: Can you give a fair trial? Can you give an unbiased decision about this?

That was a very, very bad tactical move. 

There is no way in hell that you can get somebody that’s a bigot to change their point of view after a few hours in a court, or a few days, whatever it was. There’s no way. 

She shouldn’t have been put on there. She should have been released. 

[MUSIC UP]

VO
It’s strange that Ms. Klocke wasn’t immediately released. But what’s even more alarming is how the whole episode was sorta swept under the rug. 

Attorney Kevin Sharp.
Kevin H. Sharp
This bombshell was just dropped yesterday. Item one the next day has got to be “okay, let's talk about this.” It's not.

There's something that happened off the record. As near as I can see here, or there was some agreement between the lawyers. I don't know. 

You can't tell because there's nothing on the record. And they just come back on and say, “Oh, that thing – that issue that came up yesterday afternoon – we're just gonna join in defense counsel's motion.” 

There is no motion. What are they talking about? And then that's it. And it doesn't come up again. And Mrs. Klocke is there at the end when the verdict is read. 


VO
Although it’s definitely weird that Leonard’s attorney Elliot Taikeff didn’t put up more of a fight on the matter, ultimately, it was Judge Paul Benson’s job to give Peltier a fair trial. 
Kevin H. Sharp
You know, the court had an obligation too.

Your job is not just to get a conviction. You work for the Department of Justice. 
Seems like there ought to be some thought about justice somewhere, you know. 
And instead this Klocke just ditty bops on back to the jury room. Let's go. 
It was unbelievable. You only have one job up there and that's to make sure that the defendant gets a fair trial. 
And the most basic piece of fairness is that you've got jurors who are not prejudiced against the ethnicity of the guy who's on trial.

The judge should have taken it out of the lawyers’ hands. 

VO
But Judge Benson didn’t take it out of the lawyers’ hands. 

He allowed an avowed racist to serve on Peltier’s jury, disgracing his court and tainting the verdict in the process. 

While this proposition would’ve turned the stomach of a man of integrity like the Honorable Edward McManus, it didn’t bother Mr. Benson, because he shared some of the same views as Shirley Klocke.  


We say this because of an episode that happened in his courtroom in 1981, four years after the Peltier case was adjudicated.


In that trial, the United States v. Lavallie, a Native American man, Archie Albert Lavallie, Jr., was found guilty of the attempted rape of a 13 year old girl.

Prior to sending the jury off to deliberate, Benson specified that, quote, "voluntary intoxication is not a defense to a crime of carnal knowledge." 

This was a huge red flag because there was no evidence that Lavallie was intoxicated at the time of the alleged assault. 

Since neither side had raised the issue during the trial, Lavallie’s lawyers argued on appeal that Benson’s directions had improperly raised the stereotype of a, quote, “drunken Indian.”

And a panel of judges agreed, vacating Lavallie’s conviction after concluding the jury instructions had indeed denied the defendant his constitutional right to a fair trial.

So that’s the kind of guy Benson was. He didn’t mind abusing his power to the detriment of Native Americans because he viewed them through a prism of racist stereotypes.  


After the break we document how Judge Benson conducted the government’s symphony – of destruction. 

ADVOCACY BREAK

Hi, this is Tom Morello of Rage Against the Machine, and you’re listening to “LEONARD,” a podcast series about America’s longest serving political prisoner Leonard Peltier. 

For decades I’ve been an ardent supporter of Leonard Peltier obtaining his freedom and for the rights of indigenous people. Leonard’s struggle is a long one as is the struggle for decency and justice on this continent. 

We continue to support Leonard with our solidarity and love in the hope that he will be where he deserves to be, which is free, as all people deserve to be. 

So lots of love to you, Leonard, and hopefully we’ll be able to see you out soon.


VO
The replacement of Judge McManus with Judge Benson was key to the government’s success in Fargo.

Let’s break down how the most important pieces of evidence against Leonard were perverted by his rulings.

In their analysis of the trial in Cedar Rapids, the Bureau concluded that the jury had reasonable doubt as to the guilt of Bob and Dino, because quote “the government did not produce sufficient evidence of guilt.” 

To convict Leonard, the government needed a whole lot more ammo.

So prosecutors got to work on a new narrative that would implicate Peltier.


In Cedar Rapids the Feds argued that Coler and Williams had followed a red pickup onto the Jumping Bull ranch because they believed the vehicle contained Jimmy Eagle.

That theory had to be abandoned, however, after the Feds decided to drop all charges against the young man. 

The new theory needed to show that Leonard had incited the violence by luring the agents onto the Jumping Bull ranch before executing them at close range.


So the Feds switched things up in Fargo, contending that Agents Coler and Williams were actually tailing a red-and-white van that departed from Oglala housing, and not a red truck as previously claimed. 

The switcheroo hinged on the testimony of FBI Special Agent J. Gary Adams whose account of events changed dramatically between the two ResMurs trials. 

Michael Apted questioned Prosecutor Sikma about the revision in the g-man’s story.


Michael Apted
Let’s talk about Gary Adams for a minute, because he testified, of course, at the trial. 

In his 302 of the day, he reports that he overhears Williams talking on the radio, saying that he’s chasing a red pickup. 

And then at 12:18, Gary Adams reports that a red pickup is leaving the Jumping Bull compound. And he testifies to that at trial. 

But then it comes to the Peltier trial, and suddenly he testifies that he never saw any red pickup?

Robert Sikma
I don’t recall him really changing his testimony in that way. But my impression was that was really not that significant.

VO
A 302 is a form used by the FBI to report information that may later become testimony. 

Here Mr. Apted wants to know why Adams’ account on the stand in Fargo contradicted both his initial incident summary as well as his earlier testimony in Cedar Rapids.

Although Mr. Sikma downplayed the significance of Adams’s new story, the acclaimed English documentarian wasn’t ready to drop the topic.

Michael Apted
Well, I think it’s an important point. And it’s not just in his testimony, but in his 302 and the 302’s of other people, that they overhear Williams saying he’s chasing a red pickup with Jimmy Eagle supposedly in it. 

Robert Sikma
I see what you’re getting at. I probably misunderstood your questions. There was evidence that Williams and Coler were following a red pickup. And I believe that. If someone testified to the contrary I still maintain to this day that my primary belief is that there was some kind of red and white vehicle that was involved in this thing.  

Michael Apted
So what kind of vehicle was it? Was it a red pickup or was it Peltier’s red and white van?


Robert Sikma
Why is that important? I don’t understand. Maybe you can enlighten me, but they got out of some vehicle, started shooting, and within 5 minutes had committed the murders.

VO
Mr. Sikma is playing the foil here, acting like he doesn’t understand the importance of Apted’s questions when he knew very well what Michael was banging on about. 

According to the Bureau’s own analysis, J. Gary Adams’s testimony was a major factor in the acquittal of Robideau and Butler.

They knew Adams’ original statements had created reasonable doubt in the minds of the jury in Cedar Rapids, who, according to their foreman, had reasoned that someone in the red pickup was more likely to have murdered Coler and Williams than Robideau and Butler.
  
However, less than a year later, Agent Adams completely contradicted his sworn testimony in Cedar Rapids. 

In Fargo the g-man stated that he had never reported seeing a red pickup leaving the scene of the crime in Oglala, South Dakota. 

The defense could’ve made a lot of hay out of the discrepancy if the judge had allowed it. But Benson forbade all references to the trial in Iowa, meaning the jury in Fargo would never know that Agent Adams had perjured himself, or that Bob Robideau and Dino Butler had both been acquitted on the grounds of self-defense. 

To connect the red-and-white van to Leonard, the Feds called a new eyewitness who hadn’t testified in Cedar Rapids. AIMster Mike Anderson.

In Fargo Mike alleged that he saw a van being tailed by two unmarked cars on the morning of June 26th just before the shootout began. 

Actually that was a description that prosecutors backed him into.

Attorney Bruce Ellison recalled the damaging exchange when we interviewed him outside his home in Rapid City, South Dakota. 

Bruce Ellison
Mike Anderson suddenly testified that he saw Leonard driving this, as he put it, this orange pickup. And as you would see in the transcript, one of the prosecutors says – I think it was Sikma – Robert Sikma said, “Well, when you say orange pickup, do you mean a red and white van?” And he said, “Yes.” And that was kind of the way that it went.


VO
Anderson’s testimony in Fargo wasn’t unbelievable just because of the strange leap outlined by Mr. Ellison. 

It was even more unbelievable because up until the trial in Fargo Mike Anderson had never reported seeing a orange-and-red-and-white-pickup-van entering the property.


In his earlier statements Mike had placed himself in Tent City where it would have been physically impossible for him to witness the orange-and-red-and-white-pickup-van being chased onto the property due to the camp’s location at the bottom of a wooded valley.


Under cross examination by the defense Anderson admitted his story had changed because he’d been coerced by the FBI.

According to the young man, the day after the station wagon he was traveling in with Bob Robideau and Jean Roach had exploded on the side of the highway outside Wichita, Kansas, he was visited in jail by the FBI’s J. Gary Adams.

Anderson, who was a teenager at the time, said the agent refused his request for a lawyer, and threatened to beat him up if he didn’t turn state’s witness.

To hammer home the connection between Leonard and the red-and-white van, the Feds called Wilford Draper and Norman Brown.

Draper and Brown testified that during the firefight they had returned to camp to find Leonard, Dino, and Bob, loading a red-and-white van with supplies for an escape attempt that was ultimately aborted. 

Neither mentioned seeing Peltier emerge from the vehicle to fire upon the agents as alleged by Mr. Sikma. And neither recalled Anderson being on top of the hill that morning. 


Although Draper and Brown’s evidence supplemented Anderson’s account in part, under cross-examination, the young men clarified that their testimony had also been coerced by the FBI. 

Michael Apted brought up these allegations with prosecutor Robert Sikma.

Michael Apted
Let’s talk about the eyewitness testimony in the Peltier case. There’s been allegations that the statements of Anderson and Draper and Brown were coerced by the FBI. What are your feelings on that?

Robert Sikma
My feelings about it are that they were not coerced into saying anything that wasn’t true. 

They were in an unfortunate position of being involved in the commission of a very, very serious offense. 

They were very young men at the time. I think that they were between sixteen and eighteen. Maybe Brown was even younger. 


I know what they testified to during the trial but I think you have to forgive those young men. They’ve given the information to us, and these guys ended up out on the street. That makes them even more reluctant. 

They were afraid. But I don’t believe that they were coerced. I don’t believe that they said anything that wasn’t true. Except that they were coerced by the FBI. 

VO
According to Mr. Sikma, the only thing Anderson, Draper, and Brown had lied about was how they were strong-armed into testifying. 

That must’ve been one helluva fucking knee slapper at the FBI’s 4th of July barbeque in the summer of 1977, but Leonard wasn’t laughing. 

Michael Apted asked Peltier about the damage caused by their testimony.

Leonard Peltier
They gave some evidence against me. I mean, we know that that evidence was coerced. Their prior testimony was totally contradicting what they had said at the trials, which wasn’t really that damaging. 

Mike Anderson, after he had testified, came back to us, and told us he wanted to get back up there, and tell the truth. Right? 

He wanted to get back up there and say, “Hey, look, these guys threatened me, threatened my life, and everything else, if I didn’t get up there and say what they wanted me to say.” 

But Elliot wouldn’t put him back on the stand, you know.

And I mean, it wasn’t really damaging. It was damaging, but not that bad. 

Michael Apted
Mike Anderson gave very damaging testimony, Leonard. He saw you drive your vehicle, leading the agents onto the property. And that was important testimony because it gave you a motive.

Leonard Peltier
Yeah. It gave credit to the government's theory of what happened. 

That didn’t prove that I killed anybody. They wanted him saying that he had seen me come in, so that’s what they had him say. 

But Mike Anderson wasn’t there that day, where he said he was. I can’t remember what precisely he testified to, but we know he wasn’t up there. Said the FBI put him up there.

You had to be there to see that they were being forced to say some of the things. 

And Norman Brown tried to expose what was happening on the stand. 

When Elliot asked him, “Well, who told you what to say?” He pointed right at the prosecutor, Robert Sikma, and he said, “That man right there.”

VO
It may not have seemed like earth shattering stuff to Leonard, but it didn’t have to be – the prosecution’s strategy here was essentially death by a thousand cuts.

It was a snow job to use World War II army slang. 

The idea being if you overwhelm the jury with enough details it would make it impossible for them to separate fact from fiction.

To bolster the circumstantial testimony of Anderson, Draper and Brown, the Feds desperately needed new physical evidence to link Leonard to the murders.

So the government waved its magic wand, and presto.

Dave Tilsen 
A new shell casing appeared. One that was not in any of the thousands of 302s that were given as part of discovery in Cedar Rapids.

VO
Paralegal Dave Tilsen found this discovery highly dubious. Back in the 70s, Dave was working for the Wounded Knee Legal Defense Offense Committee aka WKLDOC.

Dave Tilsen
Now this was strange, because the FBI covered that totally. Now to go back to when I was staying at the Jumping Bull farm, one of the things that we had to contend with was all of the markings from the FBI investigation. 

And most of these consisted of spray painted circles around every bullet hole. And all over the ground for several acres there were little circles, which we interpreted to be, you know, they picked up a piece of evidence right there. 

And later we got literally two file cabinets full of tens of thousands of what they call FBI 302s. For each individual piece of evidence, the FBI fills out a form called a 302. 

And the 302 talks about the evidence: where they found it, and what it was, and the significance of it. 

VO
Dave was living on the Jumping Bull farm days after the shootout so he was extremely familiar with the crime scene. 

He knew better than almost anyone else that the FBI had gone over the area with a fine-toothed comb. 

And yet somehow it had taken three days for the Bureau to find the shell that allegedly connected Leonard to the murder weapon – in the open trunk of Jack Coler’s car. 

As improbable as that may sound, it was not impossible that the FBI had uncovered the cartridge on June 29, but their account of its discovery was far from watertight. 

Initially the Bureau claimed that the ordinance had been found by the Chief of the FBI Firearms and Toolmarks Division. 

At least that’s what he had sworn to on an affidavit that was presented to a magistrate in Canada to expedite Peltier’s extradition to the U.S.

However, in Fargo, the g-man told a different story altogether. The division chief now alleged that the shell had been given to him by an FBI fingerprint specialist.


But there was no official log of what had been transferred and to whom. 

In other words, the cartridge that became the linchpin of the prosecution’s case appeared to have materialized out of thin air.  

The shell casing was a crucial piece of evidence because it supported the government’s notion that Leonard had executed the agents at close range.


Dave Tilsen
You know, as a shell casing gets ejected from the gun, it doesn't travel more than a few feet, so that the person who fired that shell casing needed to be close enough to the agents for their shell casing to have landed in the trunk of the car. 

This put, for the first time, somebody next to the agents. And if you're standing next to an agent and shooting him, the presumption is that that's better evidence for first degree murder. 

VO
The other key was that Anderson, Draper, and Brown had all sworn Leonard fired at the FBI agents from long range with an assault rifle. 

The fact that others had also reported seeing Bob Robideau firing the same weapon that same day, a distinctive AR-15 with Oglala AIM wood-burned into the shoulder stock, was omitted from the record.

The Feds also neglected to mention that the AR-15 that they now alleged was the murder weapon hadn’t been recovered from Mr. Peltier’s possession, but had actually been found in the burned-out station wagon of Bob Robideau.  

To connect the .223 shell to the communal AR-15, the prosecution summoned a specialist in the FBI’s Firearms and Tool Marks Identification Unit. 

In Fargo the ballistics expert explained how he had used an extractor markings test to connect Leonard’s rifle to the spent round discovered in Coler’s trunk. 

When asked why he had not been able to use the more accurate firing impression test, the agent had sworn that the gun was too damaged to be examined by this method. 

What the jury in Fargo would never learn is that the g-man had been able to conduct the more accurate firing impression test, and that result had come back negative.

Meaning the Feds knew that the .223 shell that had materialized in Coler’s trunk had not been fired from Leonard’s AR-15 when they testified to the contrary in North Dakota.


Another troubling incident that wouldn't be uncovered until after Peltier’s conviction.

Dave Tilsen 
It was really a devastating piece of evidence, and the judge would not allow really aggressive cross examination of FBI witnesses. 

In fact, at one point, he said that nobody calls an FBI agent a liar in my courtroom. 

So when they tried to get the lab, and the FBI agents to say, "Why is it that you could not match this shell casing for this Cedar Rapids trial, but now all of a sudden you can? And why is it that this shell casing was not produced as part of discovery in the Cedar Rapids trial, but now it was?” 

And when they tried to ask those questions, the prosecution objected, and the judge sustained the objection, and really gave a message to the jury that it was totally outrageous and inappropriate for the defense to imply that the FBI had done any shenanigans. 

Shenanigans is my word. I’m sure that’s not the judge’s word.

VO 
Of course Judge Benson’s ruling ignored the fact that the FBI had engaged in plenty of shenanigans. 

Truth was they’d gotten into more skullduggery than Tekashi69 at a Santacon convention. 

In Fargo the government manufactured evidence and coerced witnesses to give themselves a competitive advantage, but they had done the same in Cedar Rapids and come up short. 

From their analysis of the Robideau-Butler verdict, the Feds were painfully aware that a rational jury might see through their thin veneer of bullshit and acquit Peltier. 

To put their fall guy behind bars, the government needed to ensure Leonard’s jury wasn’t thinking logically, so the Feds went to work drumming up fear in Judge Benson’s courtroom. 

Because fear alters our brain chemistry and literally changes the way we think. 

At least that’s according to scientists at Northwestern University, whose research showed that when the amygdala, the part of your brain that regulates emotions, senses fear, the cerebral cortex, the part of your brain that harnesses reasoning and judgment, becomes impaired.

In Fargo, fear was the ultimate X factor.

Kevin McKiernan
The other thing that they did was the prosecution managed to scare the jury in Fargo. They scared the judge, and they scared the jury. 

They did that after ex parte meetings with the FBI and prosecutors. Ones that the defense didn't know about at the time and found out later. 

And that's a very bad ethical thing to do in the law is not to have both sides in the judge's chamber.


VO
That’s filmmaker Kevin McKiernan. 

After working as a reporter for NPR and the New York Times in the 70s, Kevin studied law in Boston, so he’s not being hyperbolic. He’s just telling it like it is.

For those of us who never went to law school and don’t know what an Ex Parte meeting is, that’s where one party meets with the judge without the other side being present. 

In this case the Feds met with Judge Benson where they dropped a bomb on his ass.
Kevin McKiernan
Suddenly, the judge, who was already pro-prosecution and known as kind of a hanging judge, now was told that this terrorist group, the American Indian Movement, was going to make things difficult. And they're unpredictable. We don't know what to do. 

VO
The FBI’s gambit worked like a dream and precipitated what may have been Judge Benson’s most impactful decision of all when he ordered the immediate sequestration of the jury.

When a jury is sequestered they are kept in total isolation from friends and family to avoid exposure to outside influence or information that is not admissible in court.


Typically sequestered jurors are put up in a hotel and are not allowed to watch television, read newspapers, or use social media.

The jury’s sequestration in Fargo marked yet another departure from the rulings of Judge McManus in Cedar Rapids.


Bruce Ellison 
In Cedar Rapids, the jury got to go home to their families every night.

VO
Attorney Bruce Ellison again.

Bruce Ellison
In Fargo, they were immediately sequestered, which meant that they couldn't go home. They stayed in a hotel. Six week trial, it's a long time.


VO
For six weeks the jury was transported back and forth to court from their hotel on a bus. 

But this was no ordinary coach. 

Due to concerns over security, the bus was specially outfitted per the orders of the judge. 

Kevin McKiernan
The judge got the Marshall Service to blacken the windows on the jury bus, where the jury was taken back and forth to the hotel. So already they were in kind of a scary situation where they couldn't look out the windows, and people couldn't look in the windows.

Leonard Peltier
They had the jury believing that we were going to come in and bomb them and kidnap them. And they had this bus where they blocked off all the windows, and they would rush them in and rush them out. 

Bruce Ellison
And that was supposedly to prevent the jurors from being shot at by snipers. 

Jurors were literally pushed into the bus as fast as they could like if they spent a second more they would suffer harm. 

You can't do that for six weeks and not have a sense of who are your protectors and who is the threat, and have that not affect what your decision making is going to be, or really how you would even be willing to evaluate the evidence, let alone things that would question the propriety of the actions of your protectors.

Leonard Peltier
Well, one of the things that they analyzed from the Cedar Rapids trial was that the jury wasn’t sequestered. They seen a variety of people from elders to kids out there, demonstrating in support of Bob and Dino.

VO
In Leonard’s opinion the government’s efforts in Cedar Rapids to portray the American Indian Movement as a mad dog terrorist organization had been undone because the jury had been exposed to Bob and Dino’s supporters inside and out of the courtroom.  

Leonard Peltier
So the government knew they had to prevent that from happening in Fargo, because I had just as much support there in Fargo. Right?

They did a very excellent job in throwing fear into people that was already racist against Indian people. 

VO
Dino Butler shared a similar observation in this dramatization of his interview for “Incident at Oglala.”

Dino Butler  
They were a lot different, the two trials. 

In Fargo, the courtroom, the atmosphere was very – it was very tense, I felt. 

It wasn't a comfortable situation to be in. 

At our trial in Cedar Rapids, we kind of communicated with our jury a little bit, you know. 

They weren’t intimidated. I mean, they were, but in the end, the jury saw through all the intimidation and everything.

In Leonard’s case, the jury was sequestered, and there was only Marshals and FBI Agents around them. 

And these Marshals would be talking to themselves loud enough to where the jury could hear them talking about Bob Robideau and Dino Butler being nothing but cold-blooded killers. Things like that, you know. 

I felt that if me and Bob had been tried under the same circumstances, we would be convicted too. 

VO 
If the jury in Cedar Rapids had been kept in total isolation and hustled on and off a transport bus with blacked out windows to protect them from phantom AIM snipers, their verdict might have been a lot different. 


The jury in Fargo was told the precautions were for their safety. But it was really a cheap ploy to scare them into a guilty verdict.  

It was no coincidence then that the prosecution’s first exhibit, the gory crime scene and autopsy photographs, built on and expanded these fears. 

In Cedar Rapids, Judge McManus only permitted the jury to see a fraction of these graphic pictures, but, in Fargo, Judge Benson permitted full access and allowed the government to display the grisly photos repeatedly over the trial.

Leonard spoke to Michael Apted about the judge’s decision.

Leonard Peltier
After the trial, the jurors said, “When we seen those bloody autopsy pictures, we knew somebody had to pay.” 

I told Ken Tilsen. He came there one day, and I says, “Man, I feel the doors being slammed on me and being welded.”

I said, “They’re really giving me a snow job here.” And he says yeah.

Michael Apted
Was there any time in the trial that you thought you might have a chance?

Leonard Peltier
After seeing what was happening and seeing the evidence that was being allowed like the bloody autopsy pictures in living color, you know, knowing and watching the jury, and seeing the effect it had on them. No.


VO
In the end, the jury in Fargo was so terrified by the Feds’ blatant fear mongering that it almost didn’t matter what the evidence was against Peltier.

Of course that was the point all along. Judge Benson was the government’s straw man.

Jean Roach
His court was a kangaroo court. I remember John Trudell named him Bouncing Benson.


VO
Oglala shootout survivor Jean Roach attended Leonard’s trial and recalled the bad vibes in Fargo.

Jean Roach
You have a judge that sits there and swings himself in a chair because he doesn’t want to hear it. He literally did that. Sequestered jury. He wouldn't allow them to see what was going on. 

They drive them by, you know, in these armed cars in a bus, the whole jury, back to their motels, because they were playing on the frightening thing that they said about the American Indian Movement coming to Fargo. 

The whole manipulation of everything, you know, it's just sad.


VO
The government’s Machiavellian tactics weren’t lost on Pulitzer prize winning Native American author Louise Erdrich either. 

Of course, in 1977, Erdrich wasn’t a famous writer. She hadn’t even been published. 

Back then, Louise was a recent college grad who had found a job working for a small press distribution service that operated above a little flower shop on Main Street in downtown Fargo.
After stumbling upon the Peltier trial, Louise returned every day for the proceedings. It was an eye-opening experience.

Louise Erdrich
I'd never been through a security checkpoint before. 
I'd never been in the presence of this sense that we had to corral these people together because they might suddenly burst out in violence. 
I think that was the sense in the courtroom. That the Indians had to be kept under control. And the implication of that is they're dangerous. 
You could look at everybody who was in that group, and say, “Well, who's dangerous?” 
There's a couple of people who have long hair in braids. But they're mostly women in windbreakers and sneakers.

VO
In the final episode of Season Two, we’ll hear a lot more from Erdrich about her impressions of the trial and how it impacted her journey as an artist.
Outside the courtroom the charismatic John Trudell had ascended to become AIM chairman. 
In Fargo it was Trudell who was organizing the grassroots effort to educate the wider community and counteract the Bureau’s negative propaganda.

Louise Erdrich
John Trudell became a friend and was in Minneapolis a lot, and came to the bookstore a lot.

VO
Louise Erdrich became close with John Trudell in the years following the trial when he would visit her at the bookstore she co-owns with her sister in Minneapolis.


Louise Erdrich
We have his book Lines From My Mind, and we sell his music, everything, and I miss his presence on the earth. 

Oh [laughs] his just – his way of thinking made sparks jump around in your brain in a different way than they ever had before.
VO
There was something special about John. Louise recognized it. And so did the government. 
[MUSIC UP]

They knew John was a wildcard, so they took him out of the picture with a little help from the U.S. Marshals. 

Bruce Ellison and Jean Roach recalled the fiasco when we interviewed them.

Bruce Ellison
Part of what the marshals did was they set up a team out in the hallway, outside the courthouse. [dog barking]

So once the courtroom was closed, they restricted access to the courtroom. It was only supposed to happen once court actually started, not just once they closed the doors. 

John tried to get in when the doors were closed, but court hadn't started. 

And the Marshals told him he couldn't go in. And he said, “Yes, I can, because court hasn't started yet.” 

Jean Roach
I remember John Trudell walked in. And the door swung. And this big old U.S. marshal then goes, “We have laws right there. I mean, we have rules. They're written right there. And one of them is not to swing that door.”

And then John – he had to look up at them because he's so tall. You know, John's not that tall – and he goes, "Well, if you think you're so damn smart, why don't you come read them to me?" [Laughter]

Bruce Ellison 
At which point they arrested him, and they put him in the local jail and basically held him there. He started a total fast. After about a week or so, he began to really suffer, you know, quite a bit. 

But they had a trustee come and see him. And the trustee said to John that he had better stop doing what he was doing, or they were going to go after his family.

VO
And they did go after Trudell’s family eventually, but that’s a story for another day.


After the break we show how the Feds managed to stymie the majority of Leonard’s defense. 


ADVOCACY BREAK


My name is Sheron Wyant-Leonard, author of I Will: How Four American Indians Put Their Lives on the Line and Changed History, and you’re listening to “LEONARD,” a podcast series about one of the longest serving Indigenous political prisoners in America, Leonard Peltier.

I met Leonard Peltier at a prison pow wow at Leavenworth Federal Prison in 1997.  This led to my interviewing members of the American Indian Movement for over two decades, including help from Congressman John Lewis and Ethel Pearson, a clan mother from Comox Island in Canada. 

She’d given Leonard the name Gwarth-ee-lass during a traditional potlatch ceremony, making him by First Nations’ law her son. It’s a name from her father, which meant, “He Who Draws the People to Him.” She said, “before this is all over, Leonard will have drawn people to him from all over the world.”  


Andrew Fuller and Rory Delaney have created a podcast with many important dimensions; you’ll listen more than once. 

As you do, you may find your own beliefs in support of Native rights and sovereignty reflected back to you. 

Leonard Peltier’s story is proven for the ages. 


VO 
After five weeks and twenty-five witnesses, the prosecution rested on April 6th, 1977. 

Now it was finally Leonard’s turn to share his side of the story.

The star witness for the defense was supposed to be Myrtle Poorbear.

Poorbear was the Native American woman who claimed Leonard had killed the agents in front of her on June 26th. 

Originally Poorbear was scheduled to testify for the prosecution in Fargo, as she had been in Cedar Rapids, until the government realized that putting her on the stand was actually a really terrible, horrible, no good, very bad idea. 

They realized that after Bob and Dino’s lawyers had uncovered glaring contradictions in her statements to the FBI in their preparation for Cedar Rapids. 

What the Robideau-Butler team had discovered of course was that Myrtle hadn’t witnessed the killing of Coler and Williams. 

Nor had she ever met Leonard, Dino, Bob, or any of the other campers who were living at the Jumping Bull farm that summer.

When Peltier’s attorneys subpoenaed Myrtle as a defense witness in Fargo, they were hoping to expose these inconsistencies and cast doubt on the integrity of the FBI’s investigation. 

Before they could get her on the stand, however, they needed the judge’s okay.

To inform his decision, Judge Benson required that Myrtle’s testimony first be presented in an offer of proof, giving him a chance to essentially screen the evidence. 
In a sidebar, away from the jury, Myrtle testified that she hadn’t been at the Jumping Bull’s on June 26th, that Special Agent David Price had told her about the murders, and that she only cooperated with the FBI investigation after Mr. Price repeatedly threatened to kill her.

Ultimately Benson ruled that Poorbear’s account would not be presented to the jury because, if believed, it would, quote, “shock the conscience of the court.” 
According to the judge’s circular logic, Poorbear’s testimony was inadmissible because the FBI was not the party on trial in Fargo. Mr. Peltier was.

Michael Apted asked prosecutor Robert Sikma about the Myrtle Poorbear episode when they spoke over three decades ago.

Michael Apted
Why don’t we talk about Myrtle Poorbear and her role in all of this? How did she come to your attention?

Robert Sikma 
Myrtle was interviewed initially as someone who was or had been a girlfriend of Leonard’s. And she identified herself in that manner. 

Special Agent David Price, I believe, first interviewed her. The FBI interviewed hundreds and hundreds of witnesses. 

Sometimes they would have interviews, which would cause them to believe that there's something there. And so they would go back and interview. 

And it isn't unlike what happens in various investigative stories, or as happens to you; you interview and you don’t get much. And you talk again and you get a little bit more. 

And that’s what happened to Myrtle Poorbear. 

Michael Apted
I’m sure you know there’s been a great deal of controversy about the affidavits, and how they seem to contradict each other. How do you explain that?

Robert Sikma
They did contradict each other. But affidavits that are contradictory are not necessarily contradictory. They may be progressive. 

For example, if you’re getting testimony from an unwilling witness, they’ll give you an affidavit that will bring you up to a given point and deny that they know any more about it. Then they’ll admit that they know a little more about it. And that of course is inconsistent with what they’ve said in the first place. 

And then finally they may come out and admit that they saw everything. And that’s what occurred in this case. And we made all that available to the defense and to the Canadian authorities. 


VO
WKLDOC attorney Ken Tilsen wasn’t buying Sikma’s explanation in the following recreation of his interview for “Incident at Oglala” that has been dramatized by his son Dave.


Ken Tilsen 
Mr. Sikma comes up with the notion that this is like a witness who is sort of reluctant to tell the truth, so they come in, and they give you a little bit, and the next day, they say, “You know, I didn’t tell you the whole story,” and they give you a little bit more.

This story has a certain amount of plausibility, at least from what we see in television cop films. But this isn’t what we’re dealing with. 

We’re dealing with a totally false invention of three separate affidavits. 

Each containing facts known only to the questioner, and not known to the witness. 

Each containing greater and greater detail. And each of them produced by the same FBI agents.

Now you have to understand the total picture to understand how viciously the FBI is playing on this. 

Two days before her statement to the FBI, Myrtle Poorbear is found on the streets hallucinating and unable to take care of herself. 

She is an extreme example of disease, poverty, almost every debilitation that affects a person both physically and mentally from the poorest of the poor in the United States. 
In the face of this, one has to look at the questions of how did it come about that she gave first an affidavit that she wasn’t there, but Leonard told her about it. 

A second affidavit, “I was there and I saw it.” 

And then finally an affidavit describing in great detail how Leonard killed the agents and she pounded on his back to get him to stop. 

There was not one shred of evidence, nothing to support the notion that Myrtle Poorbear had ever been to the Jumping Bull site.

And for them to believe that they have this key witness who is constantly changing her story, and is the girlfriend of Leonard Peltier, is an absurdity. An absolute absurdity. 

Only a sick and twisted mind could believe that they were presenting evidence when they presented Myrtle Poorbear. 

VO
Mr. Tilsen’s take on Myrtle Poorbear is both startling and sickening because it reveals the ugly truth of how far the FBI would go in pursuit of an end. 

It also begged an excellent question from the famous director Michael Apted. 

Michael Apted 
Why do you think the government thought they’d ever get away with it?

Ken Tilsen
I think this is a very complicated question and deals with the entire mentality of the FBI. 

I think that they believe that they are the white knights. 

That it’s their job to erase the scourge of radicalism, of Indian activism, of civil rights movements, of anyone from the Black or Latino community who would come forward. 

That Martin Luther King, and anybody who’s not on their side, are their enemies.

I believe that Price is actually capable of ignoring every single fact in his mind that doesn’t accord with his preconceived ideas. 

And I think this is true also in the broader sense of a police organization like the FBI, whose basic criteria is political; that, really, the facts fit their ideology. 

VO
The big wigs down at the J. Edgar Hoover Building didn’t care who really killed the agents. 

The Feds blamed AIM for the unrest on Pine Ridge so they made an example of Leonard to send a warning to Indian Country that political disobedience wouldn’t be tolerated. 

To bring home the victory, Judge Benson made sure that Leonard’s defense was unable to repeat any of the successful strategies that had been deployed to save Bob and Dino in Iowa.    

In Cedar Rapids Judge McManus had allowed Robideau and Butler’s attorneys to present two weeks of testimony. 

But in Fargo Judge Benson permitted Leonard’s lawyers just two and a half days in open court.

Bruce Ellison
In the Cedar Rapids trial, the government's theory was that Dino, Bob and Leonard were acting in concert all day. That they were all aiders and abettors basically by being involved in the firefight with the FBI agents who were eventually killed.

VO
Bruce Ellison was retained for the defense in both ResMurs trials so he is extremely familiar with their differences. 
Bruce Ellison
So that allowed for self defense to be raised upon evidence that people, who responded, who were simply engaged in the firefight, would have reasonable fear to believe that their lives were in danger, as opposed to being aggressive. 
And so the jury was able to hear evidence of the climate of fear and terror that existed on the Pine Ridge Reservation for the outlying communities, including Oglala, from Goon squad attacks, and the FBI seeming to all this to occur.
VO
By dropping the aiding and abetting angle in Fargo, the government was able to take the self-defense argument off the table.

The Feds’ new contention, that the killing had occurred at close range, cleared the way for Judge Benson to rule that any and all references to the climate of fear that existed on Pine Ridge prior to the shootout were inadmissible. 

The decision greatly diminished Leonard’s defense and shocked Kevin McKiernan.
Kevin McKiernan
You know at that time Pine Ridge Reservation, where the shootout took place, was the most violent place in the United States per capita. 
More violent than Los Angeles or Detroit or Chicago. 
There was a so-called Reign of Terror, and there were dozens and dozens of AIM supporters or suspected AIM supporters who were targeted. 
And none of that information was allowed in. 
The judge won't allow evidence of the climate that existed around the murder. 
So, once again, as I called it, you've got a garden variety murder case that could have happened anywhere that has no context to it. 
That's part of the successful formula that was used.

VO 
The Feds wanted this to be a pure murder case that could’ve happened anywhere.

They didn't want it to be specific to Pine Ridge, because they didn’t want to get into the Reign of Terror, Wounded Knee, or the American Indian Movement. 

They’d gone down that road in Cedar Rapids and learned a valuable lesson.

Context was kryptonite. Because with context the events of June 26th are infinitely more understandable than without it. 

But the Feds didn’t want Peltier’s jury to understand why the firefight had happened. 

The government wanted them to find it incomprehensible why two FBI agents would be shot dead on the Pine Ridge Reservation in South Dakota in 1975. 

They wanted to portray Leonard as a garden variety psychopathic villain from a Michael Bay movie, and not a hero defending women, children and his people’s way of life. 


Dino Butler
Leonard’s trial wasn’t really much of a trial.

VO
Dino Butler again.

Dino Butler
The prosecution put on everything they wanted to put on. Then when it came time for Leonard’s side to put on their evidence, the judge made a determination that it was too much for the jury to believe or whatever.

And it greatly reduced Leonard’s defense. I mean, he probably could have put on defense there for two or three weeks, and ended up doing two or three days. 
So he wasn’t really allowed to have a trial. My feelings. I think Leonard would have got convicted in that courtroom even if God was his attorney.


VO
But Leonard didn’t have God as an attorney. He had Elliott Taikeff.
 
Which brings us back to another major difference between the two trials.

Kevin McKiernan again. 

Kevin McKiernan
One of the reasons for the acquittal in Cedar Rapids, Iowa, of Leonard's co-defendants was Bill Kuntsler. Bill Kuntsler was magnificent in that case. 

And, you know, there was no William Kuntsler in Fargo. Elliot Taikeff, I know that in some quarters he has a great reputation, but I wasn't impressed by him, and I didn't think that he did that great a job. 

It was a Herculean challenge, given the fact that the government managed to shave the deck – to use a gambler's term – to do things that were unfair and not according to the rules.

VO
No one’s quite sure how Leonard ended up with Mr. Taikeff, but in an adversarial proceeding like a murder trial the appointment of an inexperienced defense attorney as lead counsel wouldn’t have displeased the FBI.
While Mr. Taikeff had represented some high profile mafia clients on the east coast, he had never done a murder trial.

And while a similar sort of setup worked out fabulously in “My Cousin Vinny,” this was real life. And Taikeff’s motives were a lot murkier than Vincent Gambini’s.

As the trial progressed, Leonard’s confidence in Mr. Taikeff quickly evaporated.

Leonard Peltier
The attorney, my chief counsel at that time, just didn’t do that good of a job. 

You know, he was supposed to be a high caliber lawyer. And I kept expecting him to start doing something.

And it was probably about the second week of the trial where I just totally got fed up with him, and I told him, I says, “Hey, look, you guys might as well just split, you’re fired.” 

“I can do just as good a job as you’re doing. You’re not fighting for my life.” 

And he said, “Well, we can’t. The judge won’t allow us.” 

And I said, “No, you can fight for my life. You can fight for it.” And I said, “You’re not doing it.”

VO
Every time Leonard was on the verge of firing Taikeff the lawyer talked him out of it.


Leonard Peltier
He kept telling me things like, “You know, Leonard, I don't have to be here, you know. I get 50,000 on up, per case. You know, and I’m doing this for you, you know. Because I’m sympathetic to the Indians, and I want to do this and do that for you people. I want to get you off.” 

And, you know, when I – when you don’t have any money to hire an attorney, when you’re depending on people who – who, you know, he didn’t have to be there. You know.

Michael Apted
What sort of mistakes did Taikeff make?

Leonard Peltier
Well, basically not fighting for my life is the biggest mistake, and the only mistake.

Michael Apted 
And he allowed it to be a first degree murder charge.

Leonard Peltier
Yeah. That was in there. Just before the trial started he was over there talking, as he had done numerous times, over there having discussions with the prosecutor, laughing and everything. 

And he came over to the defense table, and he told me, he said, “Leonard, the government wants you to stipulate the aiding and abetting, and just go to the first degree murder indictment, which I think is good, because as you know, there is no evidence of murder.” 

And he says, “It’s very hard for them to prove first degree murder.” “If we don’t,” he said, “they have to go back to the grand jury.” 

And he said, “We’re ready to go now, and the government’s ready to go,” he says. “We can start the trial right today, so just stipulate that.”

VO
In Cedar Rapids, the government had charged Bob and Dino with first degree murder but also with aiding and abetting. 

They weren’t sure that they could prove the AIMsters had killed the agents at close range, so they threw in the extra charge as a way to hedge their bets.    

What the prosecution hadn’t anticipated was that their backup plan would open the door to Mr. Kunstler’s powerful self-defense argument.

It was odd then that Leonard’s lawyer would voluntarily sacrifice such a valuable chess piece. 


Michael Apted 
So he talked you into accepting that the charge should be first degree murder?


Leonard Peltier
Yes. Which legally he was correct in that. He was correct. [laughs]

There is no evidence of first degree murder. But, you know, if the right, correct way would have been done, we could have – should have made the government go back to the grand jury. 

From that more evidence would have came. But I can’t, you know, blame everything on Elliot, because part of it is my fault. I allowed myself to be conned by him. You know, I – I knew better. 

I don’t want to say this to be offensive against non-Indians, but I’ve always been raised to be on your guard, not to trust too many of ‘em. Especially when they’re lawyers. 

And I let my guard down. I let him con me. and I thought he was the greatest guy in the world. I thought he was the greatest lawyer in the world. Until that trial started. 

So I gave him basically too much power into controlling the legal team.

[Sound of pages turning]

Peter Coyote
God almighty, this lawyer!

Rory
Yeah. He’s a real uh–

Peter Coyote
Turd bag!


VO
That’s Emmy winner Peter Coyote taking a moment out of our last recording session to express what just about all of us were probably thinking right about then.

We say just about all of us because there’s gotta be a few boys down at the J. Edgar Hoover building, who think yours truly are the turd bags for making this podcast. 

After the trial, Mr. Taikeff’s role in this legal debacle was scrutinized by Peltier’s camp. Their investigation yielded troubling information about the attorney's social circles.

Leonard Peltier
I now have learned that he’s a very good friend with Judge Benson, and every time he goes to North Dakota they socialize together. Legally there’s nothing wrong with it, but when you’ve got, you know – a lawyer’s supposed to be fighting for his client. 

VO
So was it a coincidence that Leonard ended up with such dodgy representation, or was something darker at play? 

After all, if Taikeff was known to socialize with a fascist jerk like Bouncing Benson who enjoyed racist stereotypes, it’s hard to believe that the lawyer was fighting for Leonard out of sympathy for the “Indians,” as he’d previously claimed. 

And if Taikeff and Benson were best buds like Will Ferrell and Jon C. Reilly in the movie “Step Brothers,” or real life BFF’s like Supreme Court Justice Clarence Thomas and billionaire Harlan Crow, that raises some very interesting questions. 

Like does Leonard Peltier deserve a new trial?

Robert Sikma
I think that legally Leonard’s not entitled to a new trial. I mean, within the bounds and the framework of law, and I think fairness, he – he was given an opportunity to raise the defenses. He had an excellent defense team, and I don’t think he’ll get a new trial. 

Michael Apted
But the defense team might say he had a hostile judge.


Robert Sikma
Well, I suppose they might, but I don’t think Leonard had a hostile judge.

VO
That’s Michael Apted locking horns with U.S. Attorney Robert Sikma one last time.

Robert Sikma
I think that the judge kept a cool head. He’s never spoken up to defend himself because probably he didn’t have to. I haven’t heard all that’s said about him, but you mentioned that he’s been criticized. But he’s been criticized by people who lost, who didn’t like the outcome. 

Michael Apted
Do you think this whole incident is as important and significant as I do?

Robert Sikma
I think it was a murder trial, it was a tragic incident, but I don’t think that it has a great deal of overall historical significance. 


VO
Mr. Sikma may not have believed there was any historical significance to the Peltier trial, but only an idiot would draw further scrutiny to the injustices that occurred in Fargo, and he was no dummy. 

Better to play it off as just another garden variety murder trial and hope no one notices the irregularities while the clock runs down on Leonard.

But the Feds’ meddling didn’t stop there. When closing arguments began on Friday, April 15th, 1977, the prosecution used the forum to misstate the testimony of Mike Anderson as they summarized the case for the jury.

In one final act of gamesmanship, the government stated that Anderson had seen Leonard get out of the red-and-white van and start shooting the agents. 

But that was false. On the stand Mike had testified to seeing a red-and-white-and-orange-pickup-van being chased onto the property, and nothing more. 


When the defense attempted to clarify the matter for the jury by quoting directly from the trial transcript, Benson forbade it. 

He also conspicuously forbade a re-reading of Anderson’s testimony that was requested by the jury, not once, but twice.

Instead of permitting a re-reading or giving them access to the 5,000 page official trial transcript, Bouncing Benson instructed the panel to rely solely upon their recollection of witness testimony. 

A strange ruling if you have nothing to hide.

But there was plenty to hide. Peltier’s extradition hearing and criminal trial had both been utter shams.

Leonard’s trial was never about justice. It was about math. 
The FBI had lost two of their own in the shootout. AIM had only lost one. 
The Feds wanted to even the body count. They wanted revenge. 

And they got their scalp on Monday, April 18, 1977, when the jury in Fargo found Leonard Peltier guilty of two counts of murder in the first degree. 

Almost two months later Bouncing Benson would administer the harshest punishment at his disposal, sentencing the AIMster to two consecutive life sentences in federal prison.

Before learning he would be dispatched to Marion Penitentiary, a supermax fortress that was specially constructed to hold 500 of America’s most dangerous criminals, Leonard unloaded on Judge Benson in the fiery rebuke that led off this episode.  


Although his speech might have seemed harsh upon first listening, it’s difficult to find fault with his assessment of the trial in Fargo given the facts of his case.

His trial had been adjudicated by a racist judge and a racist juror in a racist backwater. 


His most powerful advocate John Trudell had been locked up for weeks on a bogus contempt charge.

His lead attorney may have been actively working to sabotage him in concert with the federal government.

His jury had been kept in total isolation and led to believe that there were AIM snipers hunting them and their families. 

And the prosecution’s strongest evidence against him had been fabricated by the FBI.

Basically, if you look up raw deal in the dictionary, there should be a picture of Leonard Peltier. 

The only question is how he had the calm to deliver his epic take-down of the American justice system without unleashing a single f-bomb.

With these words Leonard sealed his fate.

Leonard Peltier
There is no doubt in my mind or my people's minds you are going to sentence me to two consecutive life terms. 

You are and have always been prejudiced against me and any Native Americans who have stood before you; you have openly favored the government all through this trial, and you are happy to do whatever the FBI would want you to do in this case. 

I did not always believe this to be so! When I first saw you in the courtroom in Sioux Falls, your dignified appearance misled me into thinking that you were a fair-minded person who knew something of the law and who would act in accordance with the law! 

Which meant that you would be impartial and not favor one side or the other in this lawsuit. That has not been the case and I now firmly believe that you will impose consecutive life terms solely because that way you think you will avoid the displeasure of the FBI. 

Neither my people nor myself know why you would be so concerned about an organization that has brought so much shame to the American people. But you and your conduct during this trial leaves no doubt that you will do the bidding of the FBI without any hesitation!

You are about to perform an act which will close one more chapter in the history of the failure of the United States courts, and the failure of the people of the United States to do justice in the case of a Native American. 

After centuries of murder, could I have been wise in thinking that you would break that tradition and commit an act of justice? Obviously not! 

Because I should have realized that what I detected was only a very thin layer of dignity and surely not of fine character.

If you think my accusations have been harsh and unfounded, I will explain why I have reached these conclusions and why I think my criticism has not been harsh enough. 

First, each time my defense team tried to expose FBI misconduct and tried to present evidence of this, you claimed it was irrelevant to this trial. 

But the prosecution was allowed to present their case with evidence that was in no way relevant.

For example, an automobile blowing up on a freeway in Wichita, Kansas; an attempted murder in Milwaukee, Wisconsin, for which I have not been found innocent or guilty; or a van loaded with legally purchased firearms, and a policeman who claims someone fired at him in Oregon State. 

The Supreme Court of the United States tried to prevent convictions of this sort by passing into law that only past convictions may be presented as evidence. 

This court knows very well I have no prior convictions, nor am I even charged with some of these alleged crimes. Therefore, they cannot be used as evidence in order to receive a conviction in this farce called a trial. 

This is why I strongly believe you’ll impose two life terms running consecutively on me.

Second, you could not make a reasonable decision about my sentence because you suffer from at least one of three defects that prevent a rational conclusion.

In the mental torture of Myrtle Poor Bear you said her testimony would shock the conscience of the American people if believed! 

But you decided what was to be believed, not the jury! 

Your conduct shocks the conscience of what the American legal system stands for in the search for the truth by a jury of citizens. 

What was it that made you so afraid to let that testimony in? 

Your own guilt of being part of a corrupted pre-planned trial to get a conviction no matter how your reputation would be tarnished? 

For these reasons, I strongly believe you will do the bidding of the FBI and give me two consecutive life terms. 

In my opinion, anyone who failed to see the relationship between the undisputed facts of these events surrounding the investigation used by the FBI in their interrogation of the Navajo youths must be blind, stupid, or without human feelings. 

[MUSIC UP]

So there is no doubt and little chance that you have the ability to avoid doing today what the FBI wants you to do, which is to sentence me to two life terms running consecutively.

You do not have the ability to see that the conviction of an A.I.M. activist helps to cover up what the government's own evidence showed: that large numbers of Indian people engaged in that firefight on June 26, 1975. 

You do not have the ability to see that the government must suppress the fact that there is a growing anger amongst Indian people. 

And that Native Americans will resist any further encroachments by the military forces of the capitalistic Americans, which is evidenced by the large number of Pine Ridge residents who took up arms on June 26, 1975, to defend themselves. 

Therefore, you do not have the ability to carry out your responsibility towards me in an impartial way, and will run my two life terms consecutively. 

I stand before you as a proud man; I feel no guilt! I have done nothing to feel guilty about! 

I have no regrets of being a Native American activist. 

Thousands of people in the United States, Canada, and around the world have and will continue to support me to expose the injustices which have occurred in this courtroom. 

I do feel pity for your people that they must live under such an ugly system. 

Under your system, you are taught greed, racism, and corruption–and most serious of all, the destruction of Mother Earth. 

Under the Native American system, we are taught all people are Brothers and Sisters; to share the wealth with the poor and needy. 

But the most important of all is to respect and preserve the Earth, who we consider to be our Mother. 

Our Mother gives us life from birth – we feed from her breast – and when it's time to leave this world, she takes us back again into her womb. 

But the main thing we are taught is to preserve her for our children and our grandchildren, because they are the next who will live upon her.

No, I'm not the guilty one here; I'm not the one who should be called a criminal. 

White Racist America is the criminal for the destruction of our lands and my people. 

To hide your guilt from the decent human beings in America and around the world, you will sentence me to two consecutive life terms without any hesitation.

If you were impartial, you would have had an open mind on all the factual disputes in this case. But you were unwilling to allow even the slightest possibility that a law enforcement officer would lie on the stand. 

Then how could you possibly be impartial enough to let my lawyers prove how important it is to the FBI to convict a Native American activist in this case? 

You do not have the ability to see that such conviction is an important part of the efforts to discredit those who are trying to alert their Brothers and Sisters to the new threat from the white man, and the attempt to destroy what little Indian land remains in the process of extracting our uranium, oil, and other minerals. 

Again, to cover up your part in this, you will call me a heartless, cold-blooded murderer who deserves two life sentences consecutively.

Finally, I honestly believe that you made up your mind long ago that I was guilty and that you were going to sentence me to the maximum sentence permitted under the law. 

But this does not surprise me, because you are a high-ranking member of the White Racist American establishment, which has consistently said, "In God We Trust," while they went about the business of murdering my people and attempting to destroy our culture.

VO
Racist White America tried their best to break Leonard, but ultimately they only succeeded in strengthening the AIMster’s spirit, for while the judge’s sentence ended Peltier’s life as a free man, from those ashes, an artist was born. 

Since his incarceration Leonard has created hundreds of paintings highlighting the indomitable spirit of Indigenous People around the world. 

Among other places, his works have been displayed in galleries in Los Angeles, San Francisco, Sante Fe, Chicago, and New York, where they have inspired thousands with a unique message of hopeful resilience. 

It’s both a poetic and tragic denouement, but for now at least Leonard’s story still has a shot at a Hollywood ending. 

So make it right, Mr. President, and free Leonard Peltier. 

With one signature, you can move our country beyond this dark chapter in its past, and push us one step closer to a reconciliation that is long overdue with the First Peoples of Turtle Island.  


This episode is dedicated to Robbie Robertson.


CREDITS

This podcast is produced, written, and edited on Tongva land by Rory Owen Delaney and Andrew Fuller. Kevin McKiernan serves as our consulting producer. 

Thanks to Peter Coyote and the rest of our cast: Elizabeth Saydah, Courage the Actor, Ed Robinson, Matt Babb, Steve Ket, and Dave Tilsen.

Thanks to Bobby Halvorson for the original music we’re using throughout this series. And thanks to Dan Battaglia for sharing his time and research.  

Thanks to Mike Cassintini at The Network Studios for their engineering assistance, and to Peter Lauridsen and Sycamore Sound for their audio mixing. 

Thanks to Maya Meinert and Emily Deutsch, for helping support us while we do what, we hope, is important work. And thanks, most of all, to Leonard Peltier. 

To get involved and help Leonard, find us on social media @leonard_pod on Twitter and Instagram, or facebook.com/leonardpodcast.

For updates and special offers subscribe to our newsletter at mbdfilms.com. 

In exchange for signing up, we’ll send you a free copy of our unreleased short podcast BEHIND IRON DOORS. 

This podcast is a production of Man Bites Dog Films, LLC. Free Leonard Peltier!