The Case of Leonard Peltier: An Interview with Kevin Sharp

By Amanda Knox with Christopher Robinson

On June 26, 1975, FBI agents Jack Coler and Ron Williams died in a shootout on the Pine Ridge Indian Reservation in South Dakota. The man who has spent the last 44 years in prison for aiding and abetting their murders is now 75-year-old Leonard Peltier, a member of the American Indian Movement, AIM, which seeks to address systemic racism and police brutality towards Native Americans. Former U.S. District Judge Kevin Sharp, who now represents Peltier, says that not only is Peltier innocent, he’s the longest serving political prisoner in American history.

Kevin Sharp  

My name is Kevin Sharp. I am practicing law in Nashville, Tennessee. I was, for six years, a Federal District Court judge, which is the trial level judge in the federal system. I was appointed by President Obama, unanimously confirmed by a Republican controlled Senate and I took the bench in May of 2011. I practiced law before that, in a small plaintiffs firm that I had started. Prior to doing that, I had worked for Congress as a lawyer. I wanted to go to law school while I was serving in the Navy, and I eventually was nominated and appointed to the federal bench. I think I was a pretty good judge. I still hear from lawyers who say, “We wish you were back.” I was “a lawyer’s judge.” 

Amanda Knox 

What does that mean? 

Kevin Sharp 

That one: it was about people. And that two: lawyers have a really hard job, and the last thing they need is a judge just riding them because they can. There’s a condition, I don’t know if you’ve ever heard of this, it’s called black robe fever. And it happens to people who are otherwise nice people before they take the bench, and then they put on a black robe and all of a sudden they think they are gods. And they begin to treat others differently.

Amanda Knox

Wow, that’s great. 

Kevin Sharp  

I never got that. And one of the reasons for that was that the job was never about me. It was always about the position. And it becomes part of the reason that I end up stepping down from that job. There’s a judge who was here in Nashville, a guy named Todd Campbell. He’s no longer on the bench, but Todd told me that one of the hardest things you’re going to have to do, the law is not difficult, but it’s going to be the most difficult thing you do, and that’s the criminal side, because the rest of it generally is about money. The criminal side is about people’s liberty. And that’s where you’ve got to be careful. Well, one of the things that drove me crazy were mandatory minimums. You know, mandatory 10 and 15 year sentences and I’m thinking, “This is insane. Why are we doing this? This is a 15 month sentence, not a 15 year sentence.” And then I eventually had to sentence three guys to life in prison for nonviolent drug offenses. Shortly after that, I stepped down and came back into private practice. I joined Sanford Heisler. It’s now Sanford Heisler Sharp. This firm was great. Gave me a platform. Said, “Whatever it is that you think is important, we think is important.” It’s a civil rights firm. So that’s how I got here. With respect to Leonard though, I am 57. So in 1975, I’m 12. At that time, there were only three television stations ― four if you count public broadcasting. It was all the same. And at night, everybody would sit down, you get your TV tray and you sit in front of the TV and you listen to the news. So I had a vague recollection of this happening, but not much, because the ‘70s were a fairly violent time. You had Munich, Patty Hearst. You had way too many airplane hijackings. You got Vietnam body counts. It just seemed to be a very violent time. And it all just kind of ran together for a 12-year-old kid, particularly in June of ’75, when school’s out and I’m more worried about baseball practice, but when I stepped down, I had done an interview with the Tennessean, our local newspaper, about the case with Chris Young and his two defendants I had to send to life in prison, and how unjust I thought that was. Well, that article comes out and I start getting lots of letters. One day, I get this big packet in the mail. And I remember saying to the person who had picked up the mail that day, she says, “Kevin, here’s something else for you.” And I could tell that it fit into that category. And usually what I did was I would just let them kind of pile up for the week, and we’d get to them on Thursday or Friday, just kind of go through them at once. Otherwise, they consumed my day. And I remember telling her to just throw it in the pile, and then I turned around, and came back and go, “You know what, why don’t you give me that one?” It was a big, yellow, thick envelope. I was like, “I’ll take that one.” It just felt different. I took it in my office and I opened it up. And it was this Leonard Peltier story. And again, I had this vague recollection of this stuff happening. I don’t know if what I was remembering was the Pine Ridge shooting or the Wounded Knee siege. I was familiar with the AIM takeover at Alcatraz. And I just start reading this thing and my day is gone, because I sat there the whole day reading transcripts, newspaper clippings, looking at photographs, reading Civil Rights Commission reports, portions of the Church Committee, and I am sucked into this thing. And I remember thinking, “This can’t be true.” This is not the America that I served in the Navy. We weren’t the bad guys, but I’m looking through here thinking, “I think we may be the bad guys here.” It was just rabbit holes everywhere. It makes me a little bit nauseous as I’m reading it. I mean, you hear the stories, but they’re just stories. This wasn’t a story. These were people’s lives and liberty. The FBI and the U.S. Attorney and the federal judges, their responsibility is to make sure that justice is served, not just getting convictions. That’s not what I see in this file. And it’s sickening. And so I call, there was a lawyer in Texas who sent it to me, and he knew Leonard and said, “Leonard would like you to take up his case.” We were put in touch with each other, I met Leonard, and we spent a lot of time talking about his case. In addition to reading everything, I just wanted to look at him, talk to him, and hear the story from him looking in his eyes. Not that it really mattered to me. I was not focused on who did what. What was more important to me at the time were the constitutional violations. I’m thinking, “I don’t know if he did it, but here’s what I do know: nobody knows if he did it, because look at the mess the FBI and the U.S. Attorney created trying to pin this on him.” They didn’t care about the Constitution. They didn’t care about anybody’s rights. What they wanted was to convict somebody for a wrong that they perceived had been done to them―the shooting of these two agents. That’s what they cared about, the rest of it be damned. And that, to me, was infuriating and sickening. I spent the next year going through this. What I’ve found through that process is I don’t think he did it. The evidence isn’t there. They don’t know who did it. There was an interview with James Reynolds, the U.S. Attorney on this case. I saw a Q&A with him in a magazine where the reporter said, “Did you pick the wrong man?” And he says, “I don’t know.” I’m thinking, “What the hell? You don’t know? Well, he’s got two life sentences. If you don’t know, who knows? It’s your job to know before you send someone to prison for life.” And they don’t know. They all admit they don’t know. Matter of fact, Glenn Crooks, who is the lead prosecutor, admitted to the Court of Appeals, “We don’t know who shot the agents and what participation Mr. Peltier had, if any. And there’s no evidence that he had any role in this except that he was there.” Just to back up a little bit on the story, it’s an odd sequence of events on why these two agents went onto the reservation to serve a warrant to begin with. What happened? There’s agents Coler and Williams. During the time between Wounded Knee siege in 1903 and this shootout in 1975, there is a buildup of federal law enforcement in and around the Pine Ridge Indian Reservation. It doesn’t make much sense. They’ve gone from agents you could count on one hand to dozens and dozens of agents in the area. The FBI was funding and providing intelligence and ammunition to a group of private militia, who were also Natives, run by a guy named Dick Wilson, called the GOON squad, the Guardians of the Oglala Nation. They were running business deals with the federal government against the wishes of the traditional Indians. So you had this powder keg in and around Pine Ridge Indian Reservation. And various members of AIM, the American Indian Movement, had been asked to come in, because over the period between 1973 and 1975, there have been 60 murders. All of these people who had been murdered are either part of the traditional Indian group, were members of AIM or supportive of AIM. 

Amanda Knox   

That’s so scary. 

Kevin Sharp 

Right, and they are scared. They’re afraid. People are being murdered and nobody is investigating. You have all these agents, they are not investigating a damn thing. So they’ve asked AIM to come in, because somebody has got to help them protect their families, protect their lands, protect their liberties. That’s why AIM is on the Pine Ridge Reservation to begin with. You’ve got a powder keg on your hands. There’s a guy named Jimmy Eagle who lives in the area, and Jimmy Eagle is wanted. One night he’s with some of his buddies, a couple of Caucasian ranch hands, a couple of his native friends, they’re all drinking together, they get into a fight, Jimmy Eagle steals one of the guy’s cowboy boots.

Amanda Knox   

OK, so, boys being boys?

Kevin Sharp   

Yep. That will get you a federal warrant in that area. So Williams and Coler radio in that they have spotted a red pickup truck that fits the description of Jimmy Eagle’s pickup truck, and they’re going to go ahead and serve that warrant and pick him up for these boots.

Amanda Knox  

For these boots.

Kevin Sharp   

Yep. 

Amanda Knox  

OK. 

Kevin Sharp  

And so they follow him onto the ―

Amanda Knox   

FBI agents for some boots. OK.

Kevin Sharp  

This thing just smells. It smells. But setting all this aside, they radio and the radio transmissions aren’t recorded, they’re transcribed. What the transcripts tell you is they see the truck, “Looks like Jimmy Eagle’s. We’re going to go pick him up.” They drive onto the Pine Ridge Reservation. At the top of this hill there’s the Jumping Bull compound, where the AIM members, they’re living out there in tents and makeshift shelters up on the ridge. The pickup truck stops about 100 yards away down the bottom. And then a shootout starts. Up at the top of this hill is Leonard Peltier, Bob Robideau, and Dino Butler, the three guys who will eventually be charged with killing these agents. But at the bottom of this hill, a shootout begins. And there’s radio transmission that’s going back and forth. Coler and Williams are radioing in that they’re in trouble, they need help. Within a really short period of time this place is surrounded with federal agents. There’s a militia up there. There are BIA agents. There’s FBI, federal marshals. It’s like, “You got 100 people up there. How did you do this so quickly with two guys who were just following a pickup truck to arrest the guy for a pair of boots?” Setting that aside, that’s how this thing gets out of hand. But this shootout is happening and these two agents are killed. As other agents are coming to the property to help back up Coler and Williams, at least two of them pass a red pickup truck leaving the property. Now, I’m no FBI agent, but somebody follow the damn pickup truck! You know what you’re doing. You know what’s happened. You know they were following a red pickup truck. You know there’s a shootout, and you pass a red pickup truck. How about turn around and go find the pickup truck? But they don’t. They go and engage in this firefight. The issue becomes, “Who shot the agents?” The government’s theory was that it was these three guys. They came down the hill and at point blank range killed these two agents. There’s no evidence that that happened. After the shootout, the AIM members escape this area. Once the law enforcement sees that they’ve gotten away, there’s nobody shooting back at them, they go into the Jumping Bull compound and they destroy the place. They are mad. They go into houses and start shooting up family photos. It seems like some kind of Vietnam movie, where the company goes in after the Vietcong have left and set the village on fire. They tear the place up, but now they’ve escaped. They eventually catch Butler and Robideau. They try to get other Indians that were up there at the compound to testify against these guys, and nobody will tell them anything. They eventually focus on these three boys, one of whom is a kid named Norman Brown, but they’re 14, 15, 16-year-old boys, and they wear them out trying to get them to testify that they saw Peltier, Robideau, and Butler go down the hill to shoot these guys.

Amanda Knox   

How old are these boys?

Kevin Sharp

Like 14, 15-years-old?

Amanda Knox  

Oh, great. 

Kevin Sharp   

Yeah, right. Right. And I’ve spoken to Norman Brown about that. What happened was, Norman, knowing that they are going to come question him about this, has consulted a lawyer, and the lawyer says, “Look, you have the right to counsel. I’m going to write on a piece of paper you have a lawyer, you are not going to speak to them without your lawyer present. Here’s his name and number.” And Norman had this little piece of paper. Well, the law enforcement convinces Norman’s mother that he needs to come down here and talk to them, because he’s facing life in prison himself for his role in this shootout. So his mother convinces Norman to go meet them at this little BIA shed. And he goes in and pulls the piece of paper out of his pocket, hands it to him. He says the guys laugh at him and throw the piece of paper into the trash. And then they grab him, throw him into a chair. They are now roughing him up. One of the agents sticks his foot between Norman’s knees, and leans into him with the agent’s knee into Norman’s throat, and starts to counsel him that he needs to get a better memory and he needs to start talking. And eventually, they get all three boys to say what they want them to say, which is, “We saw them.” They use that to get indictments. They pick up Robideau and Butler. Peltier has fled to Canada.

Amanda Knox  

How did he know that he was already being targeted by the FBI at this point?

Kevin Sharp  

Well, because they had been there. He knows they’re all targets. They get their indictments, they pick up Robideau and Butler. Leonard is now in Canada, and they decide to try them separately, not wait to get Leonard extradited back. They try these two separately in Sioux Falls. Butler and Robideau are acquitted based on self defense. The theory is that, because of the violence that’s happening, it would not be unusual for members of the GOON squad to, if not kill somebody, to rough them up. The judge allows in all of the evidence about what became known as the reign of terror, where there was so much violence in the area, they knew that it was being backed by the FBI. And so when two guys in unmarked cars drive onto the compound with weapons, that a firefight was going to begin. And so the jury ruled that it was not unreasonable for the Indians to shoot back, and if somebody got killed, it was self defense. The U.S. Attorney and the FBI were furious. One of the things that also happened was, when the boys take the stand, they say, “Here’s what the FBI did to us. Here’s what the U.S. Attorney told me to say. That is not true.” So when you put that along with the reign of terror, these guys were acquitted. So now, all they’ve got left is Leonard Peltier. And there’s a memo from one of the supervisors, an internal high level memo that says, recognizing that Butler and Robideau have been acquitted, that they are to put the resources of the United States government into convicting Leonard Peltier. And that’s what they do. First thing they got to do is get Leonard back. And the Canadian government is saying, “You don’t have any evidence that he did this.” And so they come up with an affidavit from a woman named Myrtle Poor Bear. Myrtle Poor Bear says, “I’m Leonard’s girlfriend. I was there that day. I saw him do it.” They hand that to the Canadian court. Canadians go, “Well, Mr. Peltier, looks like they got evidence against you.” They send him back to stand trial. The case is transferred to Fargo, North Dakota and put in front of Judge Benson, and this judge says, “The FBI is not on trial here. We’re not letting in this evidence about the reign of terror.” He guts his self-defense defense. He’s not gonna let any of this evidence in. Myrtle Poor Bear, it turns out, never met Leonard Peltier. Did not know him. The FBI drafted this affidavit for her to sign. So Leonard is now here, under this affidavit where Myrtle just lied. Now Myrtle says that she did that because they told her if she did not sign it, that they were going to take her daughter away from her, which was a real threat. If you’re Indian, you know they’ve been doing this for a century with these Indian boarding schools. Leonard was literally pulled out of his grandmother’s arms when he was nine years old and sent to one of these boarding schools. When they tell Myrtle they’re going to take her daughter from her, that’s not an idle threat. And she’s scared and so she signs it. They were expecting her to testify at trial, and she said, “How am I going to know who he is?” And they said, “Don’t worry about it. We’re going to tell you everything you need to know.” This is according to Myrtle. So the stories are all contradictory. The U.S. Attorney, once these affidavits come out, there’s no way they can put her on the stand. But the defense wants to put her on the stand to show, similar to what they did with the boys, that they’re threatening witnesses. The court doesn’t let her take the stand. He says, “Because of her mental health issues, she’s incompetent to testify.” And so we never hear from Myrtle Poor Bear again. The other thing that happens is, now Norman Brown and his two friends have told the truth in the first trial, they’re going to take the stand in the second trial, but their testimony is going to be limited to what they saw, which was, “Yes, we saw these men up on the Jumping Bull compound and they were shooting,” which is true. There are the rules of evidence and what that allows you to do, if you’re the judge, is to put your finger on the scale. And there’s nothing anyone can do about it unless it’s so egregious that it can’t be ignored. I’ve talked to other judges about this. They know, if they want a case to come out a certain way, they can do it. “I can make decisions on what evidence gets in which evidence does not get in, and it can completely change the course of a trial.” And I’m reading these transcripts going, “Yep. That’s what’s happening here.”

Amanda Knox

Was there any physical evidence that they tried to bring to the table?

Kevin Sharp 

Their physical evidence was this: they examine the area, and they’re not finding anything that links Leonard to this shooting, but they go back, and after they’ve examined the area a couple of times, lo and behold, there’s a shell casing that they missed. They find a shell casing, and it’s sent to ballistics and their ballistics expert says, “The gun that we believe Leonard had, which was an AR-15, was damaged in a fire, so I couldn’t do a firing pin test, which would be the most accurate test I could do, but we did a shell casing examination, and the shell casing is consistent with this AR-15.” Leonard was the only person who had an AR-15. There you go. And that’s the argument that the U.S. Attorney makes. For all of the weeks of trial, their case really comes down to this. Let me add one other thing that happens. On day two of the trial, three women show up at the courthouse in Fargo. They’ve got a piece of paper, a handwritten note on a piece of notebook paper that says, “We are friends with one of the jurors. We work with her, and the other day we were on our coffee break, and she says to us, ‘I’m really prejudiced against Indians.’ This is what she said to us. We just couldn’t live with ourselves if we didn’t bring this to the court’s attention.” And so the court says, “Thank you very much. Let’s bring this jury in here. We need to find out what’s going on.” And so they bring the jury back in, and the judge says, “Hey, we’ve got this statement here. Let me know if you have any response.” She reads it, and she says, “Yep, I said it. But I told you when you were asking me questions that I would set any prejudice I had. I’d be fair.” The judge says, “Thank you very much.” That’s it. She is sent back to the jury. They allow this woman to sit on the jury, and she votes “guilt” at the end. Although, it’s hard to blame her if you’ve got a ballistics expert whose testimony has been, “Only one person had an AR-15. Here’s a shell casing from an AR-15.” It links Leonard to this point blank shooting. All well and good. But a Freedom of Information Act request years later produces another ballistics test. And the agent who was sitting on the stand that says, “We couldn’t do a firing pin test because the rifle had been destroyed,” had done a firing pin test. And it wasn’t that weapon. They knew it. They knew it wasn’t that weapon. They had done the ballistics test and they hid it. The other thing that the judge let in was, Leonard had been charged with attempted murder. Now what had happened there was, he was in a restaurant with some other guys. Plainclothes police officers had approached him and provoked him into a fight, and then claimed he had tried to murder them. Ordinarily, the judge in the Fargo trial wouldn’t let that in, because you’ve just been charged, you haven’t been convicted. What does that have to do with Pine Ridge? The judge let it in. “That would give him motive to kill the agents. I’m gonna let it in.” After he’s tried in Fargo, he’s tried for that attempted case. And he’s acquitted, because the girlfriend of one of the police officers admits that the whole thing was a setup. He was acquitted, but how that evidence gets in, that’s the problem. But once you get the ballistics test that was hidden, it becomes a clear Brady violation, which says it’s a Constitutional violation if the prosecution and law enforcement has exculpatory evidence and then they hid it. It should have been, “This conviction is set aside, but it wasn’t. The prosecutor now has zero evidence that put Leonard at the scene of the crime, if there was a crime. 

Amanda Knox  

The other two guys had been acquitted.

Kevin Sharp   

They’ve been acquitted based on self defense. So where’s the crime? So they changed their theory to aiding and abetting. 

Amanda Knox  

It’s also odd to go after someone for aiding and abetting a first degree murder when you don’t have someone already charged with the first degree murder.

Kevin Sharp  

Right. Glen Crooks, the prosecutor, is asked that. “Who did he aid and abet?” And he said, I think it was his interview with Steve Croft, the 60 minutes reporter, Glenn Crooks says, “I don’t know. Maybe he aided and abetted himself.” You can’t aid and abet yourself, Mr. Crooks. I don’t know what law school you went to. That’s impossible. And the two guys that you indicted for it were acquitted based on self defense. So who did Leonard aid and abet? There’s nobody to aid and abet. This whole thing just stinks.

Amanda Knox  

So, a new podcast covering this case calls Leonard the longest serving political prisoner in American history. Why is that?

Kevin Sharp

I think there are two reasons why you could call him that. One is that AIM is listed as a subversive group by the FBI. They would use their counterintelligence not just watching groups they consider subversive, they’re actively doing things to interrupt them. It’s what caused so many FBI agents to be in the area. It’s what caused them to then support the GOON squad with intelligence and with ammunition. That was all politics. It’s all politics that have kept him in prison since then. When Bill Clinton was thinking about granting clemency to Leonard Peltier, Louis Freeh, who was director of the FBI, went on a full out lobbying campaign to stop that. James Comey did the same thing when President Obama was there. That’s politics. And they’re keeping a man in prison for politics. He needs to be sent home. He’ll be 76-years-old in September. What they did was a travesty. It’s time to end this.

Amanda Knox  

Why are the FBI so hung up on this?

Kevin Sharp  

Because it’s personal. These were two FBI agents and the FBI stake their reputation on it. They cannot let it go. They put the entire resources of the United States government in getting a conviction of Leonard Peltier. And they cannot say, “We were wrong.” It’s the same thing with the protests in the streets. Until the police are willing to say, when mistakes are made, “Yes, we did it. We accept the responsibility, and we’re going to do better.” Until they do, it creates an us versus them. And it’s not an us versus them. It’s us. It’s all us. 

Amanda Knox   

Leonard is turning 76 this September. We are in the midst of a pandemic. How is he surviving the situation right now? 

Kevin Sharp

He’s down in Coleman maximum security prison. It is essentially a perpetual lockdown. You might as well be in solitary, and they get out three hours a week. And during that time there, they will have to shower and make their phone calls, head to the commissary, get those things done, maybe get on a computer and send an email. You get 10 minutes for your phone call. It’s nerve wracking. But it’s interesting, I’m learning so much about the native culture. Leonard has the same way of thinking in the long term. It has been 44 years, he always has hope that at some point, and now we’re hoping that it’s President Trump, will say, “Enough is enough. Go back to Turtle Mountain.” He’s got a little place to live up there. “Go up there, paint, become an elder in your tribe, and live out what time you have left.” That’s the way he thinks, and that’s what we’re doing.

Amanda Knox  

So as much as Leonard Peltier has become a FBI boogeyman, he’s become an icon for the native community, for AIM. Is Leonard still active in that community? Does he still have roots in his community? And if so, how does he express them?

Kevin Sharp 

He’s able to send emails. He’s able to talk to people in the community who can bring back his messages. But when he went to Pine Ridge in 1975, he went there as a warrior for his people, because you can’t separate the people from the land and their culture. That’s still the way he is today. He’s moved from a warrior status to an elder status. It’s still about the tribes. It’s about the land. It’s about the environment. It’s about the kids. He’s got 12, 13 great grandchildren. When you think in terms of generations, and in terms of centuries, you don’t turn inward and just think about yourself or “Poor me,” or “How long are they going to do this to me?” They may do it forever. I’m hopeful that it won’t happen that way. That at least he’s got some time left, but his health is not great. He still keeps his spirits up. His painting helps to do that. Those are the things that he does to stay connected to those of us on the outside and more importantly to his land and his people. Really impressive guy. I would love for him to get out so that people could see the guy that I see.

Amanda Knox 

Do you have any final thoughts before I let you go?

Kevin Sharp   

I would love for people to know that these things happen. Our government is capable of this. But they’re also capable of fixing it. Until we’re ready to talk about it, and face it, we can’t end it.