Last pub night Sean pointed out that the Leonard Peltier Defense Team may have a stronger argument than I have represented. There is a legal standard, he pointed out called �fruit from a bad tree,� which states that one cannot use evidence gotten illegally and that if, in fact, Peltier was convicted on such evidence, he deserves a fair trial. I had not gone into much depth about the particulars of the FBI�s mis-dealings simply because they were not often relevant to the evidence presented at trial, and I feared boring you further with such minutiae. Nonetheless, criticism from such informed friends is not to be cast aside lightly, so I felt compelled to go back and get my facts straight, to give it another, possibly fairer look.
The biggest loophole, in terms of FBI misconduct is the testimony of the three boys placing Peltier at the agents� cars. All three maintain that they were questioned after they had requested attorneys, and threatened with physical harm before they were given representation. By any reasonable legal standard, such testimony should be excluded, but it was not, at least not completely. Whether or not this is sufficient grounds for a new trial, I don�t know, but I do know that when the Leonard Peltier Defense Council filed for an appeal on the basis of that testimony not being excluded, the court found that there was no evidence that the boys had been induced to lie during the trial (as opposed to during the investigation) and that the jury was instructed sufficiently regarding credibility and impeachment to make up their own minds. The other evidence regarding FBI misconduct had to do with the bogus extradition, which couldn�t be undone, and failure to sufficiently investigate other American Indian deaths on the reservation. Neither of those was relevant to the case against Peltier.
There is also, in the same appeal decision, an account of the circumstantial evidence viewed as most favorable to the government. As the footnote explains, ���The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.� � Hamling v. United States, 418 U.S. 87, 124, 94 S. Ct. 2887, 2911, 41 L. Ed. 2d 590 (1974), Quoting Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680 (1942).� That summary includes conclusions from evidence that I left out of my summary because I was not trying to view it as most favorable to the government. Altogether it is a pretty damning case. If there is room for reasonable doubt, it is in the credibility of Michael Anderson�s eyewitness testimony placing Peltier at the agents� cars with the AR-15, the possibility that the actual culprits left the scene in a different red vehicle before backup arrived (the Mr. X scenario), and that someone else may have been carrying another weapon capable of firing high-velocity, low-caliber ammunition but that the defense never found out about it. Of the three possibilities, the only one that is truly �reasonable� is that the FBI persuaded Michael Anderson to offer false testimony. Again, if that's the case, Peltier deserves a new trial, but there's no proof of it, not even circumstantial evidence.
At bottom, the defense proved that the FBI dealt unfairly on a consistent basis with the American Indians, but the prosecution proved that Leonard Peltier murdered the FBI agents "with malice aforethought."