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Wednesday, December 15, 2004

Media Advisory: Peltier seeks to correct illegal sentence (12-15-04)

Fargo, ND – Today, in the United States District Court (North Dakota), attorneys for American Indian activist Leonard Peltier filed a Motion to Correct an Illegal Sentence.

"Peltier has been illegally imprisoned for nearly 30 years," said Barry Bachrach, Peltier's attorney.

On June 26, 1975, two agents of the Federal Bureau of Investigation were killed on the Pine Ridge Indian Reservation in South Dakota. Mr. Peltier was charged in a two-count federal indictment. He was tried & convicted on both counts of first-degree murder & was sentenced to two consecutive life sentences. Designated as a political prisoner by Amnesty International, which has called for his immediate & unconditional release, Peltier is imprisoned at the U.S. penitentiary in Leavenworth, Kansas.

"The federal jurisdiction conferred by the statutes under which my client was convicted & sentenced depended on the location of the alleged crime, not against whom the crime was allegedly committed."

The statutes required that the acts in question take place "within the special maritime & territorial jurisdiction of the United States". Because the acts occurred on the Pine Ridge Indian Reservation, which Bachrach argues is neither "within the special maritime [or] territorial jurisdiction of the United States," Mr. Peltier claims he was convicted & sentenced for crimes over which the U.S. District Court had no jurisdiction.

The recent Supreme Court decision that ruled the sentencing guidelines in Washington State unconstitutional & threw state & federal courts into turmoil (Blakely v. Washington 124 S.Ct. 2531, 2004) also is cited in the brief submitted to the District Court on Peltier's behalf. In that case, the judge made "findings" independent of the jury and added 37 months to the 53-month sentence stipulated by the state guidelines thereby using a looser legal standard – "preponderance of the evidence" – than the "beyond a reasonable doubt" that juries use in criminal cases. The Supreme Court ruled that this practice violates the Sixth Amendment right to a trial by jury. Any facts used by a judge to justify a sentence longer than that recommended by the guidelines must be based on facts the jury had when it convicted the defendant.

"Not only did the court not have jurisdiction in the Peltier case, but the trial judge inflicted punishment – two consecutive life terms – that the jury’s verdict alone did not allow. The jury did not find all the facts 'which the law makes essential to the punishment'. According to the Supreme Court, the judge exceeded his proper authority."

Peltier is calling on the Federal Rules of Criminal Procedure in effect at the time of his sentencing – specifically, Rule 35(a) – that provided that the Court could correct an illegal sentence at any time.

"This rule applies to any offense committed before November 1, 1997," Bachrach explained.

"The appellate courts have recognized the undisputed misconduct in Peltier's case – fabricated & suppressed evidence, as well as coerced testimony – yet have refused to take corrective action for nearly three decades. This is clearly an abuse of the legal standards of American justice. It is our belief that the action filed today should ultimately lead to Mr. Peltier’s release."

Contact: Barry Bachrach, Esquire; Bowditch & Dewey, 311 Main Street, Worcester, MA 01615; (508) 926-3403 or