Prosecutor Who Backed Denial of Appeal for Leonard Peltier is Now Calling on Obama to Grant Him Clemency
In the context of the long legacy of genocide, suppression, and marginalization of native communities, Peltier’s case is another chapter of a shameful history, says Jasmine Heiss of the Coalition For Public Safety
EDDIE CONWAY: Welcome to this special edition of Rattling the Bars. I’m Eddie Conway, coming to you from Baltimore for The Real News.
Recently, indigenous political prisoner Leonard Peltier had filed a petition, at least his supporters have filed a petition on his behalf, for clemency from President Obama.
Since that time there have been demonstrations and organizing outside of the White House on behalf of Leonard Peltier, who was accused of killing two FBI agents at Wounded Knee in 1975 — he was tried and convicted. In 1976, he filed an appeal, and during that appeal, there was a lot of evidence became available that a lot of the charges, a lot of the facts that were used to get him convicted, had been falsified by the FBI. And, one of the United States prosecutors, James Reynolds, who actually participated in having his appeal turned down, is now calling on President Obama to give him clemency.
Joining us for an update on Leonard Peltier’s clemency petition is Jasmine Heiss, Director of Coalitions and Outreach with the Coalition For Public Safety. She has been organizing for political prisoners, for human rights against solitary confinement. She has worked on the state level and the national level. She has testified in front of the United Nations, and she has also been a monitor of police activities during the Ferguson and Baltimore uprising.
Jasmine, thanks for joining me.
JASMINE HEISS: My pleasure. Thank you for having me today.
EDDIE CONWAY: Okay. It seems unusual that a United States prosecutor — and matter of fact, maybe it’s never happened before — would ask the president for clemency in a case that he prosecuted for an individual. Can you explain what’s going on and why did this happen and what does it mean?
JASMINE HEISS: It absolutely is historic that a U.S. prosecutor would take such a stand and say that someone that he helped keep behind bars on appeal should, in fact, walk free. I think that what it speaks to is how historic the injustice is in Leonard Peltier’s case. He has, as you mention, been in prison for decades in connection with the 1975 killing of two FBI agents, despite the fact that the U.S. government has since acknowledged that they absolutely cannot prove that Leonard was in any way responsible for the killing of these two agents.
It’s also worth noting that while this courageous step forward, we may call it, by a prosecutor is unprecedented, it’s not the first time that someone who stood on the other side of justice has spoken out on behalf of Leonard Peltier. One of the judges who presided over his case, Judge Heaney, said that while he couldn’t reverse the conviction based on the evidence that he’d seen — which included the coercion of eyewitnesses, the suppression of potentially exculpatory evidence — he did believe that all of these aggravating factors provided merit for leniency.
So, this is just another voice — potentially someone we would call an unlikely ally stepping up and saying that, “Yes, Obama does need to show political courage and grant clemency to Leonard Peltier.” Because this is an historic injustice that calls for historic voices to stand up and step out on his behalf.
EDDIE CONWAY: Well, then, just what is this petition for clemency asking President Obama to do?
JASMINE HEISS: Well, as you probably know, the current president, as his last days in office trickle to an end, has undertaken an historic clemency effort, where he has recognized that the crisis of mass incarceration in this country, because of legislative inaction, can only be remedied by executive power. He has pledged to let out even more people who have been put into prison because of non-violent drug offences.
Now, Leonard Peltier’s clemency petition is landing on his desk among thousands of others — for a very different reason. Not because he is a non-violent drug offender, although those cases are certainly worth looking at, but because there is so much injustice over the years in his case.
The challenge is, after failing, after the judicial system essentially failing him at every juncture, he has repeatedly been denied parole, he has repeatedly lost on appeal — presidential action is the only thing that’s left to him. And so, currently, President Obama, if he acts before January 20th, could be Leonard Peltier’s only chance at freedom.
The clemency petition, which was filed by his lawyers, makes the case that after this legacy of injustice, after four decades of a botched trial of prosecutorial inaction, after politically-motivated conduct by the FBI, after the government’s own admission that they cannot, in fact, prove that he was guilty of these murders, the President has to act because now he’s the only one who can.
EDDIE CONWAY: Okay, is this prosecutor — actually, the former prosecutor, that is — is he actually… I got the impression that he’s saying that there was… he didn’t say that he was innocent or not, but he’s saying that there was not enough evidence in there to say that he was guilty, and at the same time, he’s saying that 40 years is far too much for a case like this?
JASMINE HEISS: He has, you’re right — he’s declined to comment on whether or not he believes that Leonard Peltier is innocent or guilty, which frankly, given the thin blue line that we so often see in this country, is not surprising. You’ll recall with me the case of Troy Davis who was killed by the State of Georgia, and had a very compelling case for innocence, and was executed nonetheless, I think largely because law enforcement often doesn’t like to admit that they’re wrong.
I think that it points to an important fact, however. At this point, as with Troy Davis’s case, the question of guilt or innocence becomes almost irrelevant. What’s clear to us, regardless of whether we’ll ever know what happened that day when the two agents were killed on Pine Ridge Reservation, is that Leonard Peltier was never given access to equal justice under law, which is promised on the steps of the Supreme Court, right? It is very, very clear that, like many other people who come from the Native American community, who come from black and brown communities across this country, the justice system was never designed to serve him.
And so, looking at this legacy — although I believe, personally, that Leonard Peltier is innocent — what becomes more important is the legacy of injustice that is so grave and is so troubling and is now compounded by the fact that it has been dragged on for four decades, despite more and more people coming out and speaking on Leonard’s behalf. It calls for urgent action by the President.
EDDIE CONWAY: And it’s my understanding that this is not really an outright release him and let him out in the street, but this is actually a petition for sentence reduction, which is different from just saying, like, “Okay, open the door, let this guy out.” It’s actually saying change the amount of time that he has so he can process out through the parole system, is that right?
JASMINE HEISS: Well, the President has a couple of options, and as we’ve seen the other rounds of sweeping executive clemency power that have been used, he’s chosen to use those in different ways. He has the power to issue an outright pardon, and to release Mr. Peltier. That is not executive power that’s used with a lot of frequency. He also has the power to commute his sentence, and he could choose to do this by acknowledging that Mr. Peltier has already served four decades, and his commutation should reflect that fact, which would give him a release date very soon after the commutation order.
He could also do what he has done with the cases of other recently commuted prisoners and set the release date for some time in the future and say, “All right, we believe that, given all of the questions around the fairness of this legal process, given the fact that we cannot prove that he was guilty, given the fact that both the justice and the prosecutor involved in this case believe that he should be freed, we will allow him to serve one to two more years, or even three more years, and then be released.”
I believe — and all available evidence points to the fact — that Leonard may, in fact, not survive that long. And so, if President Obama does choose to use his executive clemency power, he should take into account when commuting Leonard’s sentence or pardoning him, that he is a 72-year-old man who is very sick. Last time that I was on your show, we spoke a little bit about Leonard’s abdominal aortic aneurism, which, if it ruptures is one of the most fatal surgical emergencies in modern medicine — and he is trapped in a Bureau of Prisons medical system which has been shown and has been acknowledged by the U.S. government to systematically under-serve and under-treat the people in its care.
EDDIE CONWAY: So, if he doesn’t get relief under President Obama, the likelihood of him receiving any kind of relief under Trump is slim or none. Does that mean that he will actually die in the prison system?
JASMINE HEISS: Well, we certainly hope that’s not the case, but I will tell you that both of the last two times that I saw Leonard, he talked about coming home in a pine box — about what his funeral would look like rather than his homecoming party. So I think that that is pervasive and omnipresent here for all of us who care about this case, who care about political prisoners, and who care about freedom.
The Bureau of Prisons could certainly act on Leonard’s behalf. They could choose to release him on a compassionate release order. However, you know, as in many of the state systems, that option is often not triggered until people are literally on death’s door. And you’ll recall with me the case of Herman Wallace in Louisiana who came home just three days before he died of liver cancer — and so that would be, I think, a tragic injustice, as well. It’s clear that justice any further delayed in this case will likely be justice denied. So it’s time for the president to act.
EDDIE CONWAY: And it seems to me that there might be moral issue in here. I was looking last month, I see that Leonard Peltier’s son actually died in protesting in front of the White House to get his father free. And so, I’m sure that had a tragic impact on Leonard Peltier also, and the rest of the family.
JASMINE HEISS: Absolutely. I remember when Leonard first reached out about Waha, his son’s, failing health, and said that he’d like to be let out of prison to donate him a kidney. And, of course, he wasn’t able to do that. And you’re correct that his son walked on, he left us just outside of Washington, D.C., last month, just before Human Rights Day, on December 10th, where he was here with the rest of his family advocating for his father’s release. And so, you know, I certainly hope that that kind of consideration weighs heavily on the President, on the Department of Justice and on the White House pardons attorney, as they decide what to do next on Leonard Peltier’s case. And I think that Waha’s death is emblematic of a much larger story, which we’ve all been paying much closer attention to, with the historic protest at Standing Rock, of the marginalization and injustice that has been committed toward native communities in this country.
Even the context in which the two FBI agents died, one of the reasons that the two defendants who stood trial before Leonard Peltier were ultimately acquitted by a jury is because they believed that if those two people had, in fact, killed the FBI agents, they reasonably could have been acting in self-defence. In the years prior to the shootout at Pine Ridge, people had been disappeared and killed by goon squads which were squads that were allegedly connected directly to the government and were disappearing and murdering native activists.
So if you look at this in the context both of the long legacy of genocide, of suppression, of marginalization of native communities, and then add to that the COINTEL era, suppression of activist communities from the Panthers and from groups like the American Indian Movement, this is just another chapter in a really shameful history that Obama certainly can’t correct with this action, but could take some steps to ameliorate by granting Leonard clemency.
EDDIE CONWAY: So what other actions are taking place now on behalf of Leonard Peltier to try to win his release?
JASMINE HEISS: Well, we know that there has been some outreach from folks on Capitol Hill to the Pardons Attorney on Leonard’s behalf. Over the years, people from elected officials, to celebrities, to human rights activists — even the UN Special Rapporteur on Indigenous Rights — have spoken up and called for his release. And so in the coming weeks and then days and then hours until President Obama issues his final commutation order, I know that more and more calls, more and more postcards, more and more online actions will be going into the White House on Leonard’s behalf.
Really, the question at this moment is whether or not, with all of the things that the Obama Administration would like to get done before January 20th, will he include Leonard Peltier on that list? And I think that it is important that the President consider how grave the cost will be if he does not.
EDDIE CONWAY: Okay. Well, please, keep us posted and come back and let us know exactly what happened, how this played out in the next couple of weeks, obviously.
JASMINE HEISS: Yeah. I certainly hope that the next time we talk, it’s going to be to celebrate his release and make sure he gets to Baltimore to come see you.
EDDIE CONWAY: Yes. I would like to see him. That would be great, and then we could actually have an interview with him right here. Okay, thank you for joining me.
JASMINE HEISS: Thank you.
EDDIE CONWAY: And thank you for joining this episode of Rattling the Bars.