Peltier seeks to correct illegal sentence

Peltier seeks to correct illegal sentence

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."

Released on December 15, 2004

Contact: Barry Bachrach, Esquire; Bowditch & Dewey,
311 Main Street, Worcester, MA 01615; (508) 926-3403
or bbachrach [at] bowditch.com. Also see:
http://www.peltiersupport.org.

Leonard Peltier Defense Committee
PO Box 583
Lawrence, KS 66044-0583
Telephone: 785/842-5774; 785/842-5796 (Fax);
Web: http://www.leonardpeltier.org
E-mail: info [at] leonardpeltier.org