Episode Transcript
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Steve Taylor (00:00):
Welcome to
Breaking Green, a podcast by
Global Justice Ecology ProjectOn Breaking Green.
We will talk with activists andexperts to examine the
intertwined issues of social,ecological and economic
injustice.
We will also explore some ofthe more outrageous proposals to
address climate andenvironmental crises that are
(00:22):
falsely being sold as green.
I am your host, steve Taylor.
On January 19th, president Bidengranted clemency to Leonard
Peltier, a Native Americanactivist who had spent nearly 50
years in prison for allegedlykilling two FBI agents in a
shootout on the Pine RidgeReservation in 1975.
(00:44):
Fbi agents in a shootout on thePine Ridge Reservation in 1975.
Although a governmentballistics report showed that
Peltier's rifle did not fire theshots that killed Agents
Williams and Kohler, as well asmany other irregularities during
the trial, which included thewithholding of thousands of
pages of FBI documents, peltierwas never granted a retrial.
On this episode of BreakingGreen, we will speak with
(01:07):
Michael Kuzma, an attorney whoworked on some of Peltier's past
attempts for clemency, as wellas an effort to release
thousands of pages of FBIinformation regarding the case.
Michael Kuzma is a native ofBuffalo, new York.
He is recognized and creditedfor setting precedents with
high-profile cases at the stateand federal levels.
(01:27):
He has successfully litigatedhigh-profile freedom of
information cases against majoragencies like the CIA, fbi, us
Department of Justice, new YorkState Department of Correctional
and Community Supervision andthe governor of New York State.
His expertise has beenrecognized with the inaugural
(01:49):
Making Democracy Work Award fromthe League of Women Voters.
Michael Kuzma, welcome toBreaking Green.
Michael Kuzma (01:56):
Thank you, Steve,
for having me.
Steve Taylor (01:59):
It's been an
interesting turn of events On
the last day of Biden'spresidency, 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 (02:16):
I'm very happy
that President Biden commuted
Leonard's.
He's actually serving severalsentences and I'm very pleased
that he did that.
Leonard's scheduled to bereleased on February 18th of
2025.
I wish he had made the releaseimmediate.
(02:37):
Today's what the 27th ofJanuary?
I'm just hoping the BOPbureaucracy doesn't come up with
some type of ploy to extendLeonard's stay at the federal
prison in Coleman Florida.
Steve Taylor (02:58):
It's been a long
while since the initial
conviction and there's been alot of legal maneuvers over the
decades, but could you give us alittle bit of background of
what Leonard Peltier was accusedof and the nature of his
convictions?
Michael Kuzma (03:14):
Leonard Peltier
was charged for murdering two
FBI agents in Oglala, southDakota, which is on the Pine
Ridge Reservation.
This firefight occurred on June26, 1975.
And what happened was thatLeonard, knowing the politics of
(03:38):
South Dakota, didn't believe hecould get a fair trial there.
So he actually left the areaand was, if you will, on the run
and was later arrested inCanada on February 6th 1976.
He fought extradition and wasultimately brought back to the
(04:01):
United States and was tried inFargo, north Dakota, in spring
of 1977, before Judge PaulBenson was a Nixon appointee
very hostile to Native Americansand Judge Benson.
(04:23):
He was found guilty by anall-white jury and Judge Benson
sentenced Leonard to twoconsecutive not concurrent two
consecutive life sentences.
So Leonard's been incarceratedsince he was arrested in Canada
on February 6th 1976.
(04:44):
So he's been in prison nearlywhat?
49 years?
It's a little over a week fromnow.
Steve Taylor (04:52):
Two other people
who were arrested for the
alleged crime were foundinnocent by a jury, in large
part because they believed thatthe actions involved elements of
self-defense.
Could you address that?
Yeah, that's correct.
Michael Kuzma (05:12):
There was a trial
in Cedar Rapids, iowa, and an
all-white jury found Bob Robitoand Dino Butler not guilty.
Now, hindsight's always 20-20.
If Leonard hadn't foughtextradition and would have stood
trial with Bob Robido and DinoButler, he wouldn't have spent.
He was tried in Fargo, northDakota.
(05:33):
His defense attorney, elliotTakif, had never handled a
murder case before and a lot ofpeople are unaware of that.
(05:55):
Bruce Ellison, who I know quitewell, he's an attorney.
He's originally from New York.
He's now in Rapid City, southDakota.
He was fresh out of law schoolso he had Elliot take off, never
handled a murder case.
Bruce is fresh out of lawschool and he's being tried in
Fargo, north Dakota.
(06:15):
If you read about Leonard's case, they always say the case was
mysteriously transferred toFargo.
Well, it turns out if you reallydig into it.
Mr Takeoff consented to havingthe case heard in Fargo, north
Dakota.
Another thing that occurred,which doesn't get widespread
publicity, is that Mr Takeoffallowed a lot of prejudicial
(06:39):
evidence to come in withoutobjection.
So if you don't preserve yourobjections at the trial court
level, you can't later bringthem up at the appellate level,
which in this case would be theEighth Circuit Court of Appeals,
which is based in St Louis,missouri.
But what we did find out inLeonard's case, it didn't come
(07:01):
out at the time of trial butyears later John Privatara, an
attorney here in New York and adear friend of mine.
He was a young attorney workingwith Michael Tiger and using
the Federal Freedom ofInformation Act he obtained a
ballistics report from the FBIthat indicated that the weapon
(07:24):
linked to Leonard Peltier wasnot used in the murders of
Agents Kohler and Williams, anddefense attorneys did not have
that at their disposal at thetime of the 1977 trial.
Steve Taylor (07:39):
So was there ever
an attempt to get a retrial
based upon some of thatinformation?
Michael Kuzma (07:46):
Yes, they did,
and that was denied.
They had to go back.
That's the troubling thing.
They had to keep going back toJudge Benson who kept denying
their applications, and theydidn't fare much better in the
appellate division or not theappellate division, the Court of
Appeals I'm getting my New Yorkand federal courts mixed up but
the US Court of Appeals, theydid not allow.
(08:10):
There were some hearings inthat but ultimately Leonard was
never granted a new trial.
And just to show you how unfairthings were, one of the judges
who heard one or more ofLeonard's appeals in the Eighth
Circuit was William Webster, aformer FBI director, and I
believe he was also director ofthe CIA.
(08:31):
So he should have recusedhimself.
It's outrageous that Websterdidn't recuse himself, but here
he's appealing, hearing anappeal involving Leonard Peltier
, who's accused of shooting twoFBI agents.
Just outrageous.
Steve Taylor (08:45):
I believe the
judge in Peltier's case
disallowed any element ofself-defense to be brought up,
which I think carried the dayfor his I won't call them
co-defendants, but people whowere arrested along with Peltier
for the same crime, that theywere allowed to bring in
(09:09):
self-defense elements, but thatwas denied Peltier.
Is that correct?
Michael Kuzma (09:13):
After the
Robidoux and Butler were found
not guilty, the FBI analyzed thecase and issued a report.
The case and issued a reportand that was one of the things
they ensured that LeonardPeltier would not be allowed to
raise that defense.
They had to secure a conviction, they had to pin the murders of
(09:34):
the two agents on someone andunfortunately for Leonard
Peltier, it was him.
Steve Taylor (09:40):
So, michael,
before the Pine Ridge incident,
for which Leonard Peltier wasarrested, he was an activist
with the American Indianmovement.
Could you give us a bit of asketch of his activism and maybe
what AIM was about and what wasgoing on leading up to the
(10:01):
Timber Ridge incident?
Michael Kuzma (10:06):
leading up to the
Timber Ridge incident.
Well, aim, or the AmericanIndian Movement, was actually
founded in Minneapolis.
It was an urban movement and itwas founded in 1968, and it was
sort of a, if you will,self-help group.
They were not happy.
The founders of the AmericanIndian movement were not happy
(10:27):
with some of the abuse heapedupon Native Americans in
Minneapolis.
So they start teaching folkswhat their rights were and they
were very concerned about policemisconduct and such.
And in Leonard's case, thereason he ended up in Pine Ridge
is that he was invited by theelders.
(10:48):
He had a corrupt tribalgovernment.
The president there was agentleman by the name of Dickie
Wilson.
Elders and members andsupporters of the American
Indian movement were beingbeaten, killed and he was there
at the Jumping Bowl property atthe invitation of some of the
(11:09):
local residents.
So it was part of a self-helpor self-defense movement and he
was invited there to help someof the residents at Pine Ridge.
Steve Taylor (11:23):
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 (11:34):
Well Goons stood
for Guardians of the Oglala
Nation, but it was a terribletime for the residents there A
lot of beatings and unsolvedmurders and they really.
The murders were neverinvestigated but everyone knew
who was behind them and workingin tandem with the FBI.
Great movie for your listenersis Thunderheart with Val Kilmer
(12:07):
and I think John Trudell, whowas a member of AIM, is a part
in the movie, but it's basedloosely on the facts of what
occurred in the late 70s at PineRidge.
Steve Taylor (12:22):
Right, and so the
FBI really wasn't very
aggressive in investigating thegoons?
I'm sure yes, okay.
Michael Kuzma (12:32):
Got it.
They did not have clean hands.
Steve Taylor (12:34):
All right, got it
Okay.
So that's a bit of history.
Let's talk about yourinvolvement in the case, michael
.
So there was a time when therewas an attempt to get some FBI
records and you representedLeonard Peltier in an attempt to
obtain FBI records about hiscase.
(12:56):
So could you give us a littlebackground on that and why you
were attempting to get these FBIrecords about his case?
So could you give us a littlebackground on that and why you
were attempting to get these FBIrecords?
Michael Kuzma (13:03):
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 theyhad just they.
Jennifer Harbury, a humanrights attorney fantastic
(13:28):
attorney she had was workingwith Gina and others and that
was the tail end of the Clintonadministration.
They put a lot of time andenergy in getting President
Clinton to commute Leonard'ssentences and what happened was
after everyone was justdevastated when Clinton decided
not to act on the clemencypetition that originally had
(13:49):
been filed by Ramsey Clark, theformer Attorney General for the
United States.
Jennifer went on to work onother projects.
So then Gina asked if I'd bewilling to take over the efforts
under the Freedom ofInformation Act to secure
records from the FBI and otheragencies regarding Leonard
(14:10):
Peltier.
So Barry Bachrach, bruceEllison, john Privatera and I
got together and at the timeit's called FOIA for short, all
FOIA requests.
If you wanted records fromMinneapolis you'd have to send a
request there.
(14:30):
That's since changed, but atthe time you had to make
requests to the different fieldoffices and there were 56.
So we knew Minneapolis wouldhave records because that was
the office of origin for theResmers investigation Resmers
standing for reservation murders.
So we sent a request there.
(14:52):
We sent one to Chicago becausewe knew Richard Held who was
involved in counterintelligenceprogram activities Very, very
awful person.
But anyway, we sent a requestto Chicago because of all their
COINTELPRO activities.
We sent requests to LA and whathave you?
(15:12):
So we sent all these requestsout there were maybe a dozen or
so and they were all forwardedto FBI headquarters.
And then the FBI calls us usbeing John Privatera, bruce
Ellison, john and myself, barryBachrach and they said, hey look
, we'll process these requestsvery quick, but you have to
(15:38):
agree never to submit anotherFOIA request on behalf of
Leonard Peltier.
But of course we couldn't agreeto that.
So we said well, why don't youtell us what field offices have
records and which don't?
They said, oh no, we can't dothat.
You'll have to submit requeststo every field office in America
(15:58):
, which we ultimately did.
So we send out 56 requestsaround the country and it turns
out every field office inAmerica had records regarding
Leonard Peltier.
Slash Resmers ultimately learnedI could spend hours talking
about this how we got jerkedaround by the FBI, how they
(16:27):
delayed our request becausethere was unpaid FOIA bills,
supposedly from years earlier.
But as a result of theserequests, we learned that the
government had 142,579 pagesregarding Leonard Peltier and
Resmers.
You might say, well boy, that'san interesting number.
Well, at the time Leonard wastried, they only had they gave
(16:47):
his defense attorneys 3,500pages.
So there were thousands andthousands of pages that his
defense attorneys didn't have attheir disposal in 1977.
That his defense attorneysdidn't have at their disposal in
1977.
So, simply on the sheer numberof records that the FBI withheld
(17:07):
from Leonard Peltier and hisdefense attorneys, how could you
say the 1977 trial was fair?
Now, in 1979, we learned thatthere were actually 18,000 pages
.
That's what they claimed.
Then 12,000 pages were releasedin full or in part.
One of those pages was thatballistics report we talked
(17:28):
about earlier.
Steve Taylor (17:30):
So wait, I want to
stop you right there.
So that ballistics report thatsaid that the Leonard Peltier's
weapon was not involved in themurders.
Is that what you're referringto?
That's the one that's correct.
That was actually a governmentballistics report.
Michael Kuzma (17:47):
Yeah, it was
prepared by I think his name was
Hodge and that should haveactually been turned over in 77,
but was withheld and was priedloose from the FBI by Mike Tiger
and John Privetera as a resultof a FOIA request made in the
late 70s.
Again, that should have beenturned over in 77.
(18:08):
It's Brady material.
It's exculpatory but it wasdeliberately withheld.
So I can remember because priorto me getting involved on the
legal front I would writeletters.
I can remember in collegewriting a paper about the FBI's
war on the American Indianmovement and such.
I went to DC lobbied.
I remember Senator Inouye wasvery supportive of Leonard
(18:31):
Peltier.
He actually spoke to a group ofactivists.
We were going from office tooffice urging various senators
to liberate Leonard from prison.
So I was well aware of his caselong before I became an
attorney and got involved on thelegal front.
So we had roughly 3,500 pagesturned over at his trial, 18,000
(18:54):
pages we learn about.
In the late 70s, as a result ofthe case brought in the District
of Columbia Fast forward to2002, we ultimately sued the FBI
in the federal court inMinneapolis because we thought
those would be the records thatwould be of most interest and of
(19:17):
help to Leonard.
So we brought that case andthat's when we learned there
were the 142,579 pages.
And what was wild, steve, aboutthat case?
It took them years to processthe material.
Now, under FOIA they'resupposed to produce the
sought-after material within 10business days, or well, now it's
(19:39):
20.
That never happens.
So it took them years toprocess the material.
We made the request in 01,filed a lawsuit in 02.
We didn't get a final decisionuntil 2009.
And one of the arguments thegovernment used in that case,
that FOIA case, is they couldn'trelease many of these pages
(20:02):
because it would hamper thenation's war on transnational
terrorism.
So, as outrageous as that claimwas, the courts accepted it.
So to this date there'sthousands and thousands of pages
that Leonard Peltier nor hisattorneys have seen.
It's just outlandish.
So there's so many things withthis case withholding of records
(20:26):
, 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 nowretired US attorney who was
involved in Leonard'sprosecution, stated in an oral
argument that the governmentdidn't know who shot the agents.
But there Leonard sat for halfa century and the courts, you
(20:50):
know they didn't really want todeal with it.
It's really a tragedy.
So I'm very pleased that thepresident really a tragedy, so
I'm very pleased that thepresident, president Biden,
finally did what Bill Clintonshould have done, what 25 years
ago.
Steve Taylor (21:08):
What do you think
those documents may show that
would be of interest when itcomes to issues such as
COINTELPRO and the like?
Michael Kuzma (21:17):
Well, there were
some documents that we did on
Earth.
Buffalo, for example, had afile on Leonard Peltier and you
think, my God, why would theBuffalo field office have
anything?
And apparently they weregetting they, the FBI, that is,
they were getting reports thatafter the firefight in Pine
(21:41):
Ridge that Leonard was givingdance lessons or something,
native dance lessons.
But there was a document whichseemed to indicate that there
may have been an informant nearthe defense team.
The other thing is there's asubfile N N, as in Nancy was the
(22:01):
informant file that waswithheld in full.
So I think the governmentduring the trial had all kinds
of informants doing everythingthey could to sabotage things
and I think even once Leonardwas convicted, I think they were
taking all kinds of steps todisrupt the defense committee
(22:25):
and any attempts to secure hisfreedom from prison.
Steve Taylor (22:30):
One of the things
you said really, really jumped
out.
You felt indications, or evenpossibly evidence, that an
informant was close to thedefense team.
Could you talk about that?
Michael Kuzma (22:44):
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 indicatethey may have had someone close
to the defense team, which wouldhave been horrendous because he
had this defense attorney take,if who he's passed away.
(23:05):
But so you have.
This attorney never handled amurder case before.
And then if you have someonemasquerading as, say, a
supporter or a paralegal, infact is feeding information to
the authorities, that would havebeen something we thought would
have got the attentions of thecourt to get Leonard a new trial
(23:27):
.
That's why we were fighting sovigorously to get those records.
Steve Taylor (23:32):
What was the
ultimate outcome in that effort?
Michael Kuzma (23:37):
Both the district
court and the US Court of
Appeals for the Eighth Circuitruled that the information could
be withheld.
Now the Minneapolis file, which, as I previously indicated, was
the office of Origin for thePeltier and Resmers
investigative files.
(23:58):
The number of documents orpages was around 90,000.
10,500 some odd pages werewithheld in their entirety and
both the district court and theappellate court said oh yeah,
that's okay.
The problem with the courts iswith FOIA, whether it's Leonard
(24:21):
Peltier or any other case.
They forget that disclosure,not secrecy, is the dominant
feature of FOIA and just becausean exemption may apply doesn't
mean it has to be invoked.
The exemptions there's like anational security exemption,
there's an exemption for lawenforcement and then there's
(24:44):
subparts there's one forinformants, 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 theythey don't conduct what they
call in camera their decisionson government employee
(25:07):
affidavits, like in the FBI'scase.
They have a director of theFOIA unit and usually he will
prepare an affirmation or adeclaration stating I've
(25:28):
reviewed the records and they'reexempt under B national
security, b7, ongoinginvestigation or whatever the
case may be.
Steve Taylor (25:39):
So you said you
were happy that there was a
commutation.
But let's look at that a bit.
What's the difference between acommutation and a pardon?
We've seen a lot of pardons, sowhat's this?
We get a commutation.
Michael Kuzma (25:52):
now so there's
everybody.
They get the concepts confused.
But, Steve, do you know inrecent history a person who was
had had their sentence commutedand then they were pardoned?
It was Patty Hearst.
So Jimmy Carter commuted hersentence, which got her out of I
(26:14):
think she was in Pleasant inCalifornia there's a prison
there and then Bill Clintonpardon, you know, reduced or
what have you, and then later,now that President Biden's
(26:38):
commuted his sentences, thepardon would be laid later to
wipe the slate clean.
Steve Taylor (26:46):
He's, he's what?
80 years old, has a lot ofhealth problems failing vision,
diabetes, a lot, of, a lot ofailments.
Failing vision, diabetes, a lotof ailments.
That's correct.
So, and this is, I think, isn'tthis indefinite home custody or
something like that?
Michael Kuzma (27:00):
Yeah, it says
home confinement, but I last saw
Leonard in Coleman and it wouldhave been, I think it was April
or May of 2023.
The conditions at Coleman werehorrible.
When I first met Leonard, hewas in Leavenworth and I think
(27:21):
he did a brief stint in TerreHaute, indiana, which is where
they conduct the federal deathsentences.
Then, from Terre Haute, I think, he went to Lewisburg,
pennsylvania, which is abouthalfway between Buffalo and
Washington, and when he was inLewisburg it was a lot easier to
see him it's about four hoursfrom my office and then he was
briefly.
(27:42):
You may recall that they weregoing to bring the guys from
Guantanamo to Lewisburg, so theystart transferring inmates out
of Lewisburg and Leonard wasbriefly transferred to a
facility in Pennsylvania justeast of Lewisburg.
And Leonard was brieflytransferred to a facility in
Pennsylvania just east ofLewisburg, but he was there only
a week or two and was beaten upby other inmates.
(28:04):
So then they shipped him backto Lewisburg and then he
ultimately ends up in Coleman,which is outrageous because
they're supposedly they beingthe BOP they're supposed to put
you in a facility that's 500miles from your residence.
So, if you think about it, mostof his families you know
they're either in Minnesota orin the Dakotas or what have you.
(28:27):
So Lewisburg was bad enough orLeavenworth would have been a
little bit better, but Coleman,florida, was difficult for
everyone attorneys and familyand they were just terrible.
To enter the facility I canremember being sent back to my
car multiple times.
They would just say, oh, youshouldn't have that handkerchief
(28:49):
in your pocket.
You got to put that back andthey were just busting my chops.
It was just awful Lewisburg notthat there's such a thing as a
nice prison, but the visits withLeonard were very uneventful.
Steve Taylor (29:03):
Could you tell us
a little bit about your
impressions meeting the man,Leonard Peltier?
Michael Kuzma (29:10):
Yeah, leonard,
he's a wonderful person.
I consider Leonard not only aclient but a friend.
He's got a wonderful sense ofhumor, great artist, phenomenal
artist, a humanitarian, alwaysjovial.
Given all that, he's gonethrough everything that's
(29:30):
happened.
It's he's he's.
He's never lost his fightingspirit and he's always
maintained his sense of humor.
He's a very.
I enjoy spending time with himand he was the same I.
I went down with a friend ofmine who's worked on some of the
(29:51):
cases, leslie Pickering, and Iwent in to see him and fabulous
man, just wonderful.
I can't say enough good thingsabout him.
But he is you did mention Steve, he is 80, celebrated his 80th
birthday in September of this2024.
And he does.
(30:11):
And being in prison and he'snever been placed in a medium,
he's always been in a maximumsecurity prison.
There was at one point I wrotesome letters a few years back
trying to get him transferred toa medium security prison.
We were trying to get him intoeither Sandstone, minnesota, or
Oxford, wisconsin, number one.
(30:33):
It wouldn't have been asstressful, I think Sandstone had
better access to medicaltreatment, plus, it would have
put him much closer to hisfamily.
But those requests weresummarily denied, unfortunately.
Steve Taylor (30:48):
Could you tell us
how he thought about efforts
surrounding his incarceration?
How did he think of that?
Michael Kuzma (30:57):
Leonard's been
supportive of all efforts to
keep his case in the publicspotlight, public eye, and he's
been very involved.
Whether it's preparing for aparole hearing or these FOIA
documents, he's very hands-on.
He likes the attorneys andlegal workers to keep them
(31:17):
abreast of what's happening.
And again, given all the losses, he still he never lost his
sense of hope.
Steve Taylor (31:32):
Do you think
Leonard Peltier was innocent or
is innocent?
Michael Kuzma (31:37):
There's no doubt
about it.
He didn't shoot the agents.
Based on the admissions made byLynn Crooks and the various
statements Leonard's given tothe media over the years, I
believe that the FBI, throughits discredited
counterintelligence program, setthe wheels in motion that
(31:59):
culminated in the deaths ofJoseph Stuntz, who we didn't
talk about, who was also killedat the same time.
Jack Kohler and Ron Williamswere killed.
But I think they're dirtytricks infiltrating AIM, snitch,
jacketing people.
Doing that.
They set the wheels in motionnot only in Leonard's case but
(32:21):
numerous other cases andunfortunately, three people lost
their lives on June 26th 1975.
So I think the real criminalsare at the J Edgar Hoover
building in Washington DC.
Steve Taylor (32:36):
How do you think
he's feeling now?
Michael Kuzma (32:39):
I would suspect
he's elated, and I would suspect
that he too wishes that datewas a little earlier.
Think he would be, is what,what?
What did hubert humphrey usedto say?
Pleased his punch thatpresident biden uh granted the
commutation.
It's a long time coming.
(33:02):
I'm thrilled, I'm happy it's uh.
Is it occurred?
Steve Taylor (33:09):
I know a lot of
people are michael Kuzma, thank
you for joining us on BreakingGreen.
Michael Kuzma (33:15):
I was glad to be
here.
Steve Taylor (33:17):
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