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Leonard Peltier's Road to Clemency with Michael Kuzma

• Global Justice Ecology Project / Host Steve Taylor • Season 5 • Episode 1

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What happens when justice collides with government secrecy? We invite you to join our conversation with attorney Michael Kuzma as we untangle the complex case of Leonard Peltier, a Native American activist imprisoned for nearly five decades. Despite clear evidence of trial irregularities, withheld FBI documents, and a ballistics report proving Peltier's innocence, he was denied a retrial. Kuzma shares his insights into the disparities between Peltier’s conviction and the acquittals of his co-defendants, highlighting the self-defense arguments that led to their freedom. As Peltier's release date approaches, we reflect on the long-standing battle for clemency and the challenges that could still hinder justice.

Dive into the murky waters of government secrecy as we reveal the shocking discrepancies in FBI records related to Peltier's case. Learn about the arduous journey to uncover over 142,000 pages of government records—a stark contrast to the measly 3,500 pages initially shared. We discuss the broader implications of COINTELPRO activities and the enduring quest for justice that Peltier’s case exemplifies. Finally, we celebrate President Biden's commutation decision, a momentous victory for Peltier's advocates, marked by elation and gratitude, yet overshadowed by the wish that justice had not been so long delayed.

As we reflect on the systemic injustices faced by Indigenous peoples, Leonard Peltier’s story cannot be separated from the broader historical context: the epidemic of violence against Indigenous women represented by the Missing and Murdered Indigenous Women (MMIW) movement, and the tragic killing of Annie Mae Aquash, whose death remains a stark reminder of the lengths to which systems of oppression have gone to silence Indigenous voices. These injustices are not isolated; they are part of a broader tapestry of historical and ongoing colonial violence.

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Steve Taylor:

Welcome to Breaking Green, a podcast by Global Justice Ecology Project On Breaking Green. We will talk with activists and experts to examine the intertwined issues of social, ecological and economic injustice. We will also explore some of the more outrageous proposals to address climate and environmental crises that are falsely being sold as green. I am your host, steve Taylor.

Steve Taylor:

On January 19th, president Biden granted clemency to Leonard Peltier, a Native American activist who had spent nearly 50 years in prison for allegedly killing two FBI agents in a shootout on the Pine Ridge Reservation in 1975. Fbi agents in a shootout on the Pine Ridge Reservation in 1975. Although a government ballistics report showed that Peltier's rifle did not fire the shots that killed Agents Williams and Kohler, as well as many other irregularities during the trial, which included the withholding of thousands of pages of FBI documents, peltier was never granted a retrial. On this episode of Breaking Green, we will speak with Michael Kuzma, an attorney who worked on some of Peltier's past attempts for clemency, as well as an effort to release thousands of pages of FBI information regarding the case.

Steve Taylor:

Michael Kuzma is a native of Buffalo, new York. He is recognized and credited for setting precedents with high-profile cases at the state and federal levels. He has successfully litigated high-profile freedom of information cases against major agencies like the CIA, fbi, us Department of Justice, new York State Department of Correctional and Community Supervision and the governor of New York State. His expertise has been recognized with the inaugural Making Democracy Work Award from the League of Women Voters. Michael Kuzma, welcome to Breaking Green.

Michael Kuzma:

Thank you, Steve, for having me.

Steve Taylor:

It's been an interesting turn of events On the last day of Biden's presidency, he commuted the sentence of Leonard Peltier. So before we get into details, I just wanted to get your initial response to the news.

Michael Kuzma:

I'm very happy that President Biden commuted Leonard's. He's actually serving several sentences and I'm very pleased that he did that. Leonard's scheduled to be released on February 18th of 2025. I wish he had made the release immediate. Today's what the 27th of January? I'm just hoping the BOP bureaucracy doesn't come up with some type of ploy to extend Leonard's stay at the federal prison in Coleman Florida.

Steve Taylor:

It's been a long while since the initial conviction and there's been a lot of legal maneuvers over the decades, but could you give us a little bit of background of what Leonard Peltier was accused of and the nature of his convictions?

Michael Kuzma:

Leonard Peltier was charged for murdering two FBI agents in Oglala, south Dakota, which is on the Pine Ridge Reservation. This firefight occurred on June 26, 1975. And what happened was that Leonard, knowing the politics of South Dakota, didn't believe he could get a fair trial there. So he actually left the area and was, if you will, on the run and was later arrested in Canada on February 6th 1976. He fought extradition and was ultimately brought back to the United States and was tried in Fargo, north Dakota, in spring of 1977, before Judge Paul Benson was a Nixon appointee very hostile to Native Americans and Judge Benson. He was found guilty by an all-white jury and Judge Benson sentenced Leonard to two consecutive not concurrent two consecutive life sentences. So Leonard's been incarcerated since he was arrested in Canada on February 6th 1976. So he's been in prison nearly what? 49 years? It's a little over a week from now.

Steve Taylor:

Two other people who were arrested for the alleged crime were found innocent by a jury, in large part because they believed that the actions involved elements of self-defense. Could you address that? Yeah, that's correct.

Michael Kuzma:

There was a trial in Cedar Rapids, iowa, and an all-white jury found Bob Robito and Dino Butler not guilty. Now, hindsight's always 20-20. If Leonard hadn't fought extradition and would have stood trial with Bob Robido and Dino Butler, he wouldn't have spent. He was tried in Fargo, north Dakota. His defense attorney, elliot Takif, had never handled a murder case before and a lot of people are unaware of that. Bruce Ellison, who I know quite well, he's an attorney. He's originally from New York. He's now in Rapid City, south Dakota. He was fresh out of law school so he had Elliot take off, never handled a murder case. Bruce is fresh out of law school and he's being tried in Fargo, north Dakota.

Michael Kuzma:

If you read about Leonard's case, they always say the case was mysteriously transferred to Fargo.

Michael Kuzma:

Well, it turns out if you really dig into it. Mr Takeoff consented to having the case heard in Fargo, north Dakota. Another thing that occurred, which doesn't get widespread publicity, is that Mr Takeoff allowed a lot of prejudicial evidence to come in without objection. So if you don't preserve your objections at the trial court level, you can't later bring them up at the appellate level, which in this case would be the Eighth Circuit Court of Appeals, which is based in St Louis, missouri. But what we did find out in Leonard's case, it didn't come out at the time of trial but years later John Privatara, an attorney here in New York and a dear friend of mine. He was a young attorney working with Michael Tiger and using the Federal Freedom of Information Act he obtained a ballistics report from the FBI that indicated that the weapon linked to Leonard Peltier was not used in the murders of Agents Kohler and Williams, and defense attorneys did not have that at their disposal at the time of the 1977 trial.

Steve Taylor:

So was there ever an attempt to get a retrial based upon some of that information?

Michael Kuzma:

Yes, they did, and that was denied. They had to go back. That's the troubling thing. They had to keep going back to Judge Benson who kept denying their applications, and they didn't fare much better in the appellate division or not the appellate division, the Court of Appeals I'm getting my New York and federal courts mixed up but the US Court of Appeals, they did not allow. There were some hearings in that but ultimately Leonard was never granted a new trial. And just to show you how unfair things were, one of the judges who heard one or more of Leonard's appeals in the Eighth Circuit was William Webster, a former FBI director, and I believe he was also director of the CIA. So he should have recused himself. It's outrageous that Webster didn't recuse himself, but here he's appealing, hearing an appeal involving Leonard Peltier, who's accused of shooting two FBI agents. Just outrageous.

Steve Taylor:

I believe the judge in Peltier's case disallowed any element of self-defense to be brought up, which I think carried the day for his I won't call them co-defendants, but people who were arrested along with Peltier for the same crime, that they were allowed to bring in self-defense elements, but that was denied Peltier. Is that correct?

Michael Kuzma:

After the Robidoux and Butler were found not guilty, the FBI analyzed the case and issued a report. The case and issued a report and that was one of the things they ensured that Leonard Peltier would not be allowed to raise that defense. They had to secure a conviction, they had to pin the murders of the two agents on someone and unfortunately for Leonard Peltier, it was him.

Steve Taylor:

So, michael, before the Pine Ridge incident, for which Leonard Peltier was arrested, he was an activist with the American Indian movement. Could you give us a bit of a sketch of his activism and maybe what AIM was about and what was going on leading up to the Timber Ridge incident?

Michael Kuzma:

leading up to the Timber Ridge incident. Well, aim, or the American Indian Movement, was actually founded in Minneapolis. It was an urban movement and it was founded in 1968, and it was sort of a, if you will, self-help group. They were not happy. The founders of the American Indian movement were not happy with some of the abuse heaped upon Native Americans in Minneapolis. So they start teaching folks what their rights were and they were very concerned about police misconduct and such. And in Leonard's case, the reason he ended up in Pine Ridge is that he was invited by the elders. He had a corrupt tribal government. The president there was a gentleman by the name of Dickie Wilson. Elders and members and supporters of the American Indian movement were being beaten, killed and he was there at the Jumping Bowl property at the invitation of some of the local residents. So it was part of a self-help or self-defense movement and he was invited there to help some of the residents at Pine Ridge.

Steve Taylor:

There was actually these so-called goon squads that would go after residents, so there was a lot of violence going on at Pine Ridge.

Michael Kuzma:

Well Goons stood for Guardians of the Oglala Nation, but it was a terrible time for the residents there A lot of beatings and unsolved murders and they really. The murders were never investigated but everyone knew who was behind them and working in tandem with the FBI. Great movie for your listeners is Thunderheart with Val Kilmer and I think John Trudell, who was a member of AIM, is a part in the movie, but it's based loosely on the facts of what occurred in the late 70s at Pine Ridge.

Steve Taylor:

Right, and so the FBI really wasn't very aggressive in investigating the goons? I'm sure yes, okay.

Michael Kuzma:

Got it. They did not have clean hands.

Steve Taylor:

All right, got it Okay. So that's a bit of history. Let's talk about your involvement in the case, michael. So there was a time when there was an attempt to get some FBI records and you represented Leonard Peltier in an attempt to obtain FBI records about his case. So could you give us a little background on that and why you were attempting to get these FBI records about his case? So could you give us a little background on that and why you were attempting to get these FBI records?

Michael Kuzma:

So in 2001, the Leonard Peltier Defense Committee was based in Lawrence, kansas, and Gina Chiala was running the defense committee. The defense committee, and they had just they. Jennifer Harbury, a human rights attorney fantastic attorney she had was working with Gina and others and that was the tail end of the Clinton administration. They put a lot of time and energy in getting President Clinton to commute Leonard's sentences and what happened was after everyone was just devastated when Clinton decided not to act on the clemency petition that originally had been filed by Ramsey Clark, the former Attorney General for the United States. Jennifer went on to work on other projects. So then Gina asked if I'd be willing to take over the efforts under the Freedom of Information Act to secure records from the FBI and other agencies regarding Leonard Peltier. So Barry Bachrach, bruce Ellison, john Privatera and I got together and at the time it's called FOIA for short, all FOIA requests. If you wanted records from Minneapolis you'd have to send a request there. That's since changed, but at the time you had to make requests to the different field offices and there were 56. So we knew Minneapolis would have records because that was the office of origin for the Resmers investigation Resmers standing for reservation murders. So we sent a request there. We sent one to Chicago because we knew Richard Held who was involved in counterintelligence program activities Very, very awful person. But anyway, we sent a request to Chicago because of all their COINTELPRO activities. We sent requests to LA and what have you? So we sent all these requests out there were maybe a dozen or so and they were all forwarded to FBI headquarters. And then the FBI calls us us being John Privatera, bruce Ellison, john and myself, barry Bachrach and they said, hey look, we'll process these requests very quick, but you have to agree never to submit another FOIA request on behalf of Leonard Peltier. But of course we couldn't agree to that. So we said well, why don't you tell us what field offices have records and which don't? They said, oh no, we can't do that. You'll have to submit requests to every field office in America, which we ultimately did. So we send out 56 requests around the country and it turns out every field office in America had records regarding Leonard Peltier.

Michael Kuzma:

Slash Resmers ultimately learned I could spend hours talking about this how we got jerked around by the FBI, how they delayed our request because there was unpaid FOIA bills, supposedly from years earlier. But as a result of these requests, we learned that the government had 142,579 pages regarding Leonard Peltier and Resmers. You might say, well boy, that's an interesting number. Well, at the time Leonard was tried, they only had they gave his defense attorneys 3,500 pages. So there were thousands and thousands of pages that his defense attorneys didn't have at their disposal in 1977. That his defense attorneys didn't have at their disposal in 1977. So, simply on the sheer number of records that the FBI withheld from Leonard Peltier and his defense attorneys, how could you say the 1977 trial was fair? Now, in 1979, we learned that there were actually 18,000 pages. That's what they claimed. Then 12,000 pages were released in full or in part. One of those pages was that ballistics report we talked about earlier.

Steve Taylor:

So wait, I want to stop you right there. So that ballistics report that said that the Leonard Peltier's weapon was not involved in the murders. Is that what you're referring to? That's the one that's correct. That was actually a government ballistics report.

Michael Kuzma:

Yeah, it was prepared by I think his name was Hodge and that should have actually been turned over in 77, but was withheld and was pried loose from the FBI by Mike Tiger and John Privetera as a result of a FOIA request made in the late 70s. Again, that should have been turned over in 77. It's Brady material. It's exculpatory but it was deliberately withheld. So I can remember because prior to me getting involved on the legal front I would write letters. I can remember in college writing a paper about the FBI's war on the American Indian movement and such. I went to DC lobbied. I remember Senator Inouye was very supportive of Leonard Peltier. He actually spoke to a group of activists. We were going from office to office urging various senators to liberate Leonard from prison. So I was well aware of his case long before I became an attorney and got involved on the legal front. So we had roughly 3,500 pages turned over at his trial, 18,000 pages we learn about.

Michael Kuzma:

In the late 70s, as a result of the case brought in the District of Columbia Fast forward to 2002, we ultimately sued the FBI in the federal court in Minneapolis because we thought those would be the records that would be of most interest and of help to Leonard. So we brought that case and that's when we learned there were the 142,579 pages. And what was wild, steve, about that case? It took them years to process the material. Now, under FOIA they're supposed to produce the sought-after material within 10 business days, or well, now it's 20. That never happens. So it took them years to process the material. We made the request in 01, filed a lawsuit in 02. We didn't get a final decision until 2009.

Michael Kuzma:

And one of the arguments the government used in that case, that FOIA case, is they couldn't release many of these pages because it would hamper the nation's war on transnational terrorism. So, as outrageous as that claim was, the courts accepted it. So to this date there's thousands and thousands of pages that Leonard Peltier nor his attorneys have seen. It's just outlandish. So there's so many things with this case withholding of records, the ballistics report. You know Leonard's admitted, you know he's said he's hasn't didn't shoot the agents. Lynn Crooks, former or he's now retired US attorney who was involved in Leonard's prosecution, stated in an oral argument that the government didn't know who shot the agents. But there Leonard sat for half a century and the courts, you know they didn't really want to deal with it. It's really a tragedy. So I'm very pleased that the president really a tragedy, so I'm very pleased that the president, president Biden, finally did what Bill Clinton should have done, what 25 years ago.

Steve Taylor:

What do you think those documents may show that would be of interest when it comes to issues such as COINTELPRO and the like?

Michael Kuzma:

Well, there were some documents that we did on Earth. Buffalo, for example, had a file on Leonard Peltier and you think, my God, why would the Buffalo field office have anything? And apparently they were getting they, the FBI, that is, they were getting reports that after the firefight in Pine Ridge that Leonard was giving dance lessons or something, native dance lessons. But there was a document which seemed to indicate that there may have been an informant near the defense team. The other thing is there's a subfile N N, as in Nancy was the informant file that was withheld in full. So I think the government during the trial had all kinds of informants doing everything they could to sabotage things and I think even once Leonard was convicted, I think they were taking all kinds of steps to disrupt the defense committee and any attempts to secure his freedom from prison.

Steve Taylor:

One of the things you said really, really jumped out. You felt indications, or even possibly evidence, that an informant was close to the defense team. Could you talk about that?

Michael Kuzma:

Yeah, there was a document here in Buffalo and then some of the records we had, I don't out of the Minneapolis lawsuit that seemed to indicate they may have had someone close to the defense team, which would have been horrendous because he had this defense attorney take, if who he's passed away. But so you have. This attorney never handled a murder case before. And then if you have someone masquerading as, say, a supporter or a paralegal, in fact is feeding information to the authorities, that would have been something we thought would have got the attentions of the court to get Leonard a new trial. That's why we were fighting so vigorously to get those records.

Steve Taylor:

What was the ultimate outcome in that effort?

Michael Kuzma:

Both the district court and the US Court of Appeals for the Eighth Circuit ruled that the information could be withheld. Now the Minneapolis file, which, as I previously indicated, was the office of Origin for the Peltier and Resmers investigative files. The number of documents or pages was around 90,000. 10,500 some odd pages were withheld in their entirety and both the district court and the appellate court said oh yeah, that's okay.

Michael Kuzma:

The problem with the courts is with FOIA, whether it's Leonard Peltier or any other case. They forget that disclosure, not secrecy, is the dominant feature of FOIA and just because an exemption may apply doesn't mean it has to be invoked. The exemptions there's like a national security exemption, there's an exemption for law enforcement and then there's subparts there's one for informants, there's one for active investigations. Those exemptions are permissive, you know, they don't have to be invoked. But the you know the courts, the judges, for whatever reasons, are kind of hands off and they they don't conduct what they call in camera their decisions on government employee affidavits, like in the FBI's case. They have a director of the FOIA unit and usually he will prepare an affirmation or a declaration stating I've reviewed the records and they're exempt under B national security, b7, ongoing investigation or whatever the case may be.

Steve Taylor:

So you said you were happy that there was a commutation. But let's look at that a bit. What's the difference between a commutation and a pardon? We've seen a lot of pardons, so what's this? We get a commutation.

Michael Kuzma:

now so there's everybody. They get the concepts confused. But, Steve, do you know in recent history a person who was had had their sentence commuted and then they were pardoned? It was Patty Hearst. So Jimmy Carter commuted her sentence, which got her out of I think she was in Pleasant in California there's a prison there and then Bill Clinton pardon, you know, reduced or what have you, and then later, now that President Biden's commuted his sentences, the pardon would be laid later to wipe the slate clean.

Steve Taylor:

He's, he's what? 80 years old, has a lot of health problems failing vision, diabetes, a lot, of, a lot of ailments. Failing vision, diabetes, a lot of ailments. That's correct. So, and this is, I think, isn't this indefinite home custody or something like that?

Michael Kuzma:

Yeah, it says home confinement, but I last saw Leonard in Coleman and it would have been, I think it was April or May of 2023. The conditions at Coleman were horrible. When I first met Leonard, he was in Leavenworth and I think he did a brief stint in Terre Haute, indiana, which is where they conduct the federal death sentences. Then, from Terre Haute, I think, he went to Lewisburg, pennsylvania, which is about halfway between Buffalo and Washington, and when he was in Lewisburg it was a lot easier to see him it's about four hours from my office and then he was briefly.

Michael Kuzma:

You may recall that they were going to bring the guys from Guantanamo to Lewisburg, so they start transferring inmates out of Lewisburg and Leonard was briefly transferred to a facility in Pennsylvania just east of Lewisburg.

Michael Kuzma:

And Leonard was briefly transferred to a facility in Pennsylvania just east of Lewisburg, but he was there only a week or two and was beaten up by other inmates. So then they shipped him back to Lewisburg and then he ultimately ends up in Coleman, which is outrageous because they're supposedly they being the BOP they're supposed to put you in a facility that's 500 miles from your residence. So, if you think about it, most of his families you know they're either in Minnesota or in the Dakotas or what have you. So Lewisburg was bad enough or Leavenworth would have been a little bit better, but Coleman, florida, was difficult for everyone attorneys and family and they were just terrible. To enter the facility I can remember being sent back to my car multiple times. They would just say, oh, you shouldn't have that handkerchief in your pocket. You got to put that back and they were just busting my chops. It was just awful Lewisburg not that there's such a thing as a nice prison, but the visits with Leonard were very uneventful.

Steve Taylor:

Could you tell us a little bit about your impressions meeting the man, Leonard Peltier?

Michael Kuzma:

Yeah, leonard, he's a wonderful person. I consider Leonard not only a client but a friend. He's got a wonderful sense of humor, great artist, phenomenal artist, a humanitarian, always jovial. Given all that, he's gone through everything that's happened. It's he's he's. He's never lost his fighting spirit and he's always maintained his sense of humor. He's a very. I enjoy spending time with him and he was the same I.

Michael Kuzma:

I went down with a friend of mine who's worked on some of the cases, leslie Pickering, and I went in to see him and fabulous man, just wonderful. I can't say enough good things about him. But he is you did mention Steve, he is 80, celebrated his 80th birthday in September of this 2024. And he does. And being in prison and he's never been placed in a medium, he's always been in a maximum security prison. There was at one point I wrote some letters a few years back trying to get him transferred to a medium security prison. We were trying to get him into either Sandstone, minnesota, or Oxford, wisconsin, number one. It wouldn't have been as stressful, I think Sandstone had better access to medical treatment, plus, it would have put him much closer to his family. But those requests were summarily denied, unfortunately.

Steve Taylor:

Could you tell us how he thought about efforts surrounding his incarceration? How did he think of that?

Michael Kuzma:

Leonard's been supportive of all efforts to keep his case in the public spotlight, public eye, and he's been very involved. Whether it's preparing for a parole hearing or these FOIA documents, he's very hands-on. He likes the attorneys and legal workers to keep them abreast of what's happening. And again, given all the losses, he still he never lost his sense of hope.

Steve Taylor:

Do you think Leonard Peltier was innocent or is innocent?

Michael Kuzma:

There's no doubt about it. He didn't shoot the agents. Based on the admissions made by Lynn Crooks and the various statements Leonard's given to the media over the years, I believe that the FBI, through its discredited counterintelligence program, set the wheels in motion that culminated in the deaths of Joseph Stuntz, who we didn't talk about, who was also killed at the same time. Jack Kohler and Ron Williams were killed. But I think they're dirty tricks infiltrating AIM, snitch, jacketing people. Doing that. They set the wheels in motion not only in Leonard's case but numerous other cases and unfortunately, three people lost their lives on June 26th 1975. So I think the real criminals are at the J Edgar Hoover building in Washington DC.

Steve Taylor:

How do you think he's feeling now?

Michael Kuzma:

I would suspect he's elated, and I would suspect that he too wishes that date was a little earlier. Think he would be, is what, what? What did hubert humphrey used to say? Pleased his punch that president biden uh granted the commutation. It's a long time coming. I'm thrilled, I'm happy it's uh. Is it occurred?

Steve Taylor:

I know a lot of people are michael Kuzma, thank you for joining us on Breaking Green.

Michael Kuzma:

I was glad to be here.

Steve Taylor:

You have been listening to Breaking Green a Global Justice Ecology Project podcast. To learn more about Global Justice Ecology Project, visit globaljusticeecologyorg. Breaking Green is made possible by tax-deductible donations by people like you. Please help us lift up the voices of those working to protect forests, defend human rights and expose false solutions. Simply text GIVE to 17162574187. That's.