Prominent Nashville attorney Kevin Sharp is leading the push to grant clemency to Leonard Peltier, whose conviction 43 years ago has been criticized by politicians, prison reform activists, religious leaders, celebrities and even some of the government officials who helped put him behind bars.
Peltier’s case is renowned in the criminal justice world. Peltier admits to being involved in a shootout at the Pine Ridge Indian Reservation in 1975. The shootout took place after two plain-clothed FBI agents pulled over a truck while investigating a pair of stolen boots.
How the shooting began and who fired the first shot is unclear, but there’s agreement that tensions were high on the reservation at the time because of a feud between the activist group the American Indian Movement, of which Peltier was a member, and the GOON Squad led by tribal chairperson Dick Wilson. The FBI supplied information, weapons and ammunition to the GOON Squad, which was accused at the time of carrying out spectacular acts of violence against AIM members. There were about 60 murders, many of them never investigated, in the area around the time of the incident, Sharp said. The Pine Ridge Indian Reservation was a powderkeg.
So when the shootout began, Peltier and others descended on the scene and fired back at the two young FBI agents, who were killed.
Peltier fled the country to Canada, but was arrested there after FBI investigators secured his extradition thanks largely to sworn statements that were later recanted. At the trial, the conduct of the FBI agents and their ties to the GOON Squad were blocked from being introduced, and a bullet ballistics test that would have exonerated Peltier was not introduced.
Although Peltier was initially convicted of first degree murder, that conviction was later vacated, but his prison sentence upheld for being an aiding and abetting a murder.
The assistant United States Attorney who helped uphold Peltier’s conviction and the federal Appeals Court judge who rejected his earlier appeals have since called for his release, as has a cascade of celebrities, religious leaders and politicians such as Pope Francis, The Dalai Lama, Mother Teresa, Archbishop Desmond Tutu, Floyd Red Crow Westerman, Nelson Mandela, Muhammad Ali, Robert Redford, Wes Studi, Tantoo Cardinal, Willie Nelson, Kris Kristofferson, and Marlon Brando, among many others.
Now, 76, Peltier remains incarcerated at a federal prison in Florida. His appeals have been exhausted and his only hope for life outside of prison is a clemency request that has been sent to President Donald Trump.
The attorney pushing for Peltier’s clemency is Sharp, the former federal judge who left the bench in part because he disagreed with mandatory minimum sentencing.
Although Trump and his political supporters continue to contest the election results, there is every reason to believe President-elect Joe Biden will be inaugurated next month. That leaves precious little time, Sharp says, for Trump to grant Peltier clemency. It’s a race against time because Peltier is in poor health, and the clemency process restarts when a new president takes office.
The Tennessee Lookout conducted an interview with Sharp about the state of the case as it reaches its 11th hour.
Tennessee Lookout: Is clemency Leonard Peltier’s only hope for release at this point in the process?
Kevin Sharp: Essentially yes. His sentence was life, but with parole. You can’t do that anymore in the federal system, they got rid of parole in the late 80s. But, because of the time of his sentence, he is eligible for parole. He keeps getting denied, and practically speaking, clemency is his only option because they are not going to parole him for the same political reasons that make clemency difficult.
When and how did you get involved in his clemency request?
After I left the bench, I became involved in the clemency petition for Chris Young. That was one of the defendants I had to sentence to a mandatory life sentence as part of a drug conspiracy conviction. In that case, Kim Kardashian got involved, because the lawyer who represented Chris was also the lawyer who represented Alice Johnson. She was the African American woman from Memphis who Trump initially commuted her sentence, and then earlier this year pardoned her back around the conviction.
So when the same lawyer, her name is Brittney Barnett, comes in, I was involved working in clemency for Chris, as was Kim Kardashian. That ultimately results in me being invited to the White House as part of a clemency roundtable discussion. It also results in a personal conversation with President Trump about clemency issues and about criminal justice reform issues.
That’s its own story, but when that meeting happens, it becomes its own story that (Kardashian, Ivanka Trump, Jared Kushner and a group of leading experts on reform issues) were all there that day. We were discussing clemency issues, how to clean it up, how to fix this broken system we all have.
Because of that there’s this lawyer in Texas named Logan Ross, who reads this and has been trying to work to help with Leonard’s case for years. He sees this and sends me out of the blue a packet of information.
So I get this thick packet. Normally what happens is I get lots of letters, mostly from men and family members of men who are incarcerated. These kind of help-me letters. For a while, I was getting so many of them that I would let them stack up and then I’d get into them once a week or so.
One day I get this thick manilla envelope and I recognize it as one of these letters. I pause and turn back to the person in my office and said, “Put it with the others, I’ll read it later in the week.” Then I’m walking back to my office and I say, “You know what, let me have that one.” I come into my office and I open this thing up and it’s this history of Leonard Peltier’s case. It’s trial transcripts, newspaper clippings, photographs, case opinions. I end up spending my day going through this thing. I look up and the sun’s gone down. I became engrossed in this case.
At first, I was just kind of shocked at what happened, and then angry at what happened. The gist of it was, would you please help Leonard? So I end up having a couple of phone conversations with Leonard and then flew down to Florida to meet with him and said, “Yeah. I’ll do it.”
What did you find compelling about the case?
It was this travesty of the criminal justice system and what happened to Leonard, and just the mountain of constitutional violations. Ultimately, Leonard was convicted of murdering two FBI agents, but the government dropped that because years later through a FOIA request it turned out they had withheld some pretty damning exculpatory evidence, which was a ballistics test that showed it was not his gun.
They knew that when they tried him and their whole case was based on another ballistics test. The expert says at trial, “Because the weapon we believe was his was destroyed in a fire, we couldn’t do a firing pin test.” That would have been the most accurate test. But all they did was a shell casing test. The expert says, “We could only do a shell casing test, and the test tells me this casing was tied to the weapon we believe belonged to Leonard Peltier.” And that really was their whole case because they had some eye witnesses that came out during the investigation, but through the course of this as it got closer to trial, they all fell apart because they all ultimately said, “Our prior testimony is not true. We were threatened by the FBI. So we said we saw things that we did not see.” So they had nothing except that he was there, and he did fire a weapon along with about 40 other Native Americans. But, a ballistics test showing that the casing was not from Leonard’s weapon was deliberately concealed and not introduced at trial.
That was the biggest one that hit me, and then as I got into it there were layers of violations. On appeal these issues came up, and the judge said even if the jury was aware of these issues I can’t say for certain they wouldn’t have convicted Leonard of aiding and abetting.
It comes back to politics. Do I want to oppose the FBI? As a matter of fact, when Clinton was considering it, there were 500 agents who picketed the White House. – Kevin Sharp, on the politics of granting clemency.
Is the problem for any president considering clemency that it appears you are going against the FBI?
Correct. When Clinton was considering this — you have to go back to the politics of Clinton. Can he come out and do something the FBI opposes? He had just survived his own impeachment hearings. He was not wanting to step out in front of this one. Through another FOIA request, I saw a letter that Louis Free, the head of the FBI, wrote to Janet Reno, then-Attorney General, saying we know Clinton is considering this, here is why he shouldn’t do it. I read it in 2019, and realized Louis Freeh knew it wasn’t true. He knows about the intimidation and threatening of witnesses. He knows about Myrtle Poor Bear (the witness who said she saw Leonard shoot the agents, but later recanted). He knows about the hidden exculpatory ballistics test. So when he’s writing to Janet Reno saying we have witnesses who saw it, he knows it isn’t true. So Clinton doesn’t do it.
Then, Obama has the same issue. It comes back to politics. Do I want to oppose the FBI? As a matter of fact, when Clinton was considering it, there were 500 agents who picketed the White House.
You now have a president who has railed against the Deep State, and has been openly critical of the FBI and its director. And you have the political point of this being a case of government overreach in terms of its collaboration with the GOON Squad. There’s a lot of reasons why a conservative would look at this case and think clemency was fair. So what is your opinion about where things stand with the Trump administration?
Well all of those things you just mentioned are right. And that’s why I think that President Trump will seriously consider it, and ultimately should grant clemency for those reasons you just said. We now all recognize, the FBI and the Department of Justice are not always the guys with the white hats. And they have to be subordinate to the constitution. We saw it with Gen. Flynn. I get why there reasons not to be happy with Gen. Flynn. But, if you’re withholding exculpatory evidence, you have got to let him go.
So when he was filing his appeal after the government said we are going to drop this, all of the exculpatory evidence came out and the DOJ said we’re going to drop the case. And, they were absolutely right. Not my politics in terms of the people involved. But, the constitution is the constitution.
They’re right about Flynn for the same reasons I’m right about Peltier.