Cedar Rapids, Iowa: June, July, 1976: Darrelle (Dino) Butler - Robert Robideau

The jury trial of Darrelle (Dino) Butler and Robert Robideau was held before U.S. District Court Judge (USDCJ) Edward McManus based on charges of killing the agents and aiding and abetting in those murders.

The defense essentially took the position that the shooting of the agents was self-defense, which was successful. Decisions by USDCJ McManus, supporting many of the defense motions, resulted in placing the Government on trial, and airing the recent history of conflicts between AIM and the FBI before the jury. Those decisions are, of course, at the judge's discretion, but the crimes committed in June, 1975, were murder and aiding and abetting in those murders and the actions of those involved that day.

The Leonard Peltier Defense Committee (LPDC) contends that Butler and Robideau were found innocent. The jury in a criminal trial does not have that power to determine if the accused are innocent of the crimes charged, they are the traditional triers of fact to determine whether or not the Government proved its case to the standard that applies: Beyond a Reasonable Doubt.

Whether or not the defense had an unfair advantage based on USDCJ McManus' rulings is subject to debate and speculation. However, any weaknesses of the Government's case are a central theme throughout the LPDC web site. "Incident," and in Matthiessen's "Spirit", but one central episode at the trial, created a MEASURABLE DISADVANTAGE in the Government's case because of a ten day delay.

For the readers' information, the normal sequence of events for a criminal matter is as follows:

Pretrial motions and possible suppression hearings prior to trial; jury selection, opening arguments by the prosecution, then the defense, the prosecution's case (witness testimony and introducing evidence), the defense case presenting their witnesses and evidence (both sides, of course, have the ability to cross-examine the other's witnesses to attempt to discredit [impeach] their testimony before the jury), a possible rebuttal (counter argument) by the prosecution if the defense raises additional issues (again, subject to cross-examination by the defense), summation by both sides, charge to the jury by the judge on the law, and jury deliberations.

At the close of the government's portion of the trial (the government's case), USDCJ McManus called a TEN DAY RECESS so that he could attend a judicial conference. The effect of this allowed the defense an additional ten days to prepare their defense case; an advantage that should not be granted to either side.

Look at this issue yourself!

The readers are asked to conduct their own independent research on this issue and determine, for instance, what would have happened in this (or in any other criminal proceeding) if the prosecution (the Government in this instance) was allowed a ten day break, let's say, at the close of the defense case and before any rebuttal?

If the Government had such an advantage, the defense would, of course, immediately appeal and would win. The prosecution's conviction would have been IMMEDIATELY OVERTURNED AND REVERSED.

The Government would not be allowed such a tactical advantage. It would, by its very nature, be unfair to the defense. It is up to the reader to determine whether Butler and Robideau had an unfair advantage to be acquitted on the basis of self-defense.

Another key consideration about the Cedar Rapids trial of Robideau and Butler was that the jury DELIBERATED FOR FIVE DAYS AND TWICE REPORTED THAT THEY WERE DEADLOCKED.

Even with a 10-day advantage, the defense case was not that strong. Deliberating for five days and twice reporting that they were deadlocked can reasonably indicate that the jury certainly had a difficult time deciding. It was a close call by any measure.

Fargo, North Dakota: March - April, 1977: Leonard Peltier

"I really don't think that, to this day, that they never expected anybody to shoot them."
---Unidentified Native American - "Incident"

In "Incident," defense attorney William Kunstler proclaimed the "Two Big Lies" in the Fargo trial against Peltier. Amidst allegations of FBI misconduct, implying deliberately manufacturing evidence and perjury, the LPDC, "Spirit" and "Incident" all state that the FBI and the Government had to bolster its case against Peltier, after the failure at Cedar Rapids, in two major areas:

• Lie #1 - Connecting the "Wichita AR-15" to Peltier as the actual murder weapon.
• Lie #2 - Changing the "red pickup" being followed by Agents Coler and Williams into the red and white "van" (more accurately a suburban type vehicle) known to be driven by Peltier.

The jury heard testimony connecting Peltier to the "Wichita" AR-15.

(The Colt Firearms manufactured AR-15 is a civilian version, semi-automatic [as opposed to the fully automatic military M-16, which is not available to the public], infantry assault [compact] style weapon developed during the Vietnam conflict. This weapon fires a .223 caliber bullet, essentially a small but very high velocity round).

This AR-15 was recovered during Bob Robideau's escape when the station wagon he and others were riding in, exploded on the Kansas Turnpike outside of Wichita. The station wagon was carrying numerous weapons, ammunition and explosives. Apparently the heat from the muffler ignited the explosives and the wagon blew up and caught fire. The weapons recovered were all badly damaged, including the AR-15 that the Government had offered testimony, was Peltier's, and in his possession on the day the agents were killed. The Jury also heard testimony that Peltier, Norman Charles, and Joe Stuntz, in Peltier's vehicle, drove into the Jumping Bull compound, followed by Agents Coler and Williams, stopped, and started firing at the agents. And, that Darrelle Butler, Robert Robideau and Leonard Peltier, after the firing was over, went down to the wounded agents.

Bruce Ellison (described in "Incident" as a defense attorney, but in "Spirit" as "a young legal volunteer for the Wounded Knee Legal Defense/Offense Committee [WKLDOC]) said:

They (the Government) wanted to conclude that Leonard Peltier had an AR-15 and that that weapon was used to kill the agents. So having no match with any of the weapons they had seized, they go back to this damaged AR-15. This one that Evan Hodge (FBI Laboratory Firearms Examiner) testified that he couldn't do a firing pin test because the weapon was so badly damaged. And suddenly they have a match. The only logical explanation is that somebody in the FBI Laboratory substituted the bolt mechanism that they claimed was from the AR-15, and fired off a number of test rounds, and substituted those casings. It's not, it doesn't involve massive collusion. It's very simple. It takes a bolt mechanism, an AR-15, a box of ammunition, and a felt tip marker. (Emphasis added) (Incident at Oglala).

For additional background for the concerned reader:

• While a fugitive on November 14, 1975, Peltier narrowly escaped apprehension by an Oregon State Trooper. Under the seat of the vehicle Peltier had escaped from was Agent Coler's handgun, found in a bag with Peltier's fingerprint on it.
• The crime scene examination located one .223 caliber shell casing in the trunk of Agent Coler's vehicle. Although a definitive firing pin test could not be conducted because of the smoothness of the Wichita AR-15 firing pin, an extractor mark test (the device in the weapon that quickly removes [extracts] the casing once the bullet is fired) was completed, which matched this AR-15 to the shell casing found in the trunk. (The firing pin strikes the primer [the small cup at the rear of the shell casing that ignites the powder to fire the bullet] and leaves an indentation [mark] on the primer. The extractor device is part of the bolt mechanism [which contains the firing pin]. The extractor leaves marks as it grabs the shell casing after the bullet is fired. The ejector then forces the empty shell casing out of the weapon).
• Peltier appealed his conviction and claimed, in part, that an FBI teletype dated 10/2/75 stated that the FBI Laboratory did not match Peltier's AR-15 to the shell casing discovered in Agent Coler's trunk.
• The Eighth Circuit Court of Appeals remanded (sent back) the case to the District Court for an evidentiary hearing on the ballistics evidence. FBI Firearms Examiner, Agent Evan Hodge, testified at length during the three-day hearing under questioning by Peltier's defense team. It was well established that, "...this AR-15 with firing mechanisms and upper barrel partially melted and otherwise damaged by explosion and flames could not be test fired." ("Spirit", p. 354).
• Robert Redford in "Incident": "The Court of Appeals, however, refused to overturn Peltier's conviction, stating that while the new evidence may have influenced the jury's decision, it did not meet the required legal standard for granting a new trial."
• The Eighth Circuit Court of Appeals decision which affirmed (upheld) Peltier's conviction (for the second time) stated:

  "When all is said and done, however, a few simple but very important facts remain. The casing introduced into evidence in fact had been extracted from the Wichita AR-15. This point was not disputed."

And What Does This All Mean? Clearly, Mr. Ellison makes a very serious allegation: namely that the critical evidence (the .223 shell casing found in the trunk of Agent Coler's vehicle) was planted there to frame Peltier. He offers no basis for this allegation other than to imply this is what happened.

(It was no secret that the "Wichita AR-15" itself could not be fired because of its condition, but the bolt mechanism was still operable. The bolt mechanism was placed in a functioning similar weapon and two test rounds were fired and the extractor marks on these shell casings were compared to the casings found in and around the crime scene. This establishes for comparison purposes known shell casings (i.e. coming from the Wichita bolt mechanism), to unknown shell casings (the one found in Agent Coler's trunk and the additional 114 recovered from where Peltier first fired on the agents).

Mr. Ellison wants the viewers to believe that the test-fired casings were then placed into the evidence from the crime scene.

However, Mr. Ellison ignores some other evidence and testimony that negates this spurious claim, not the least of which was the location from where the 114 shell casings were found and that only one casing was found in Agent Coler's trunk. The location of the many casings was supported by testimony that Peltier (accompanied by Norman Charles and Joe Stuntz), were followed, stopped, and then fired upon the agents. Matching those casings to the Wichita AR-15 and to the casing found in Agent Coler's trunk was crucial to the government's case. Then why only one casing? Obviously, only one positive comparison would have been sufficient, but more, three to be exact, would have proven the connection even more. Peltier, Robideau and Butler, when they were seen to go down to the agents' vehicles knew full well that the only shell casing evidence would come from the agents' weapons that they would have fired in self-defense at their attackers. The killing of the agents at point-blank range created a dilemma for Peltier; he could not afford to leave incriminating evidence at the murder scene; evidence that could be later linked to him and his weapon. Those three shell casings from the fatal killing shots had to be taken with them and discarded. However, in their panic, they only found two; not the one that was ejected into the trunk and unseen.

Consider the following:

• The defense had access to the Wichita AR-15 and could have easily made application to the court (a motion that would have undoubtedly been granted), that they conduct their own independent tests. But instead of taking that very logical step to disprove the Government's evidence, years later, they make a baseless and irresponsible allegation.
• And, further, seven years later, after Peltier wins a decision in the 8th Circuit Court and is granted an evidentiary hearing in October, 1984, the following is noted in the District Court's decision on the testimony during that evidentiary hearing (609 F. Supp. 1143, U.S. Dist.):

  "Footnote 2. Defendant (Peltier) had an independent firearms expert present in the courtroom at the hearing, but he was NOT called to testify." (Emphasis added)

Additional Considerations

• Defense attorney Kunstler's Big Lie #2 focuses on alleged FBI changes of the description of the red pickup to a red and white "van", a "van" which placed Peltier, in the vehicle he was known to drive, at the scene of the murders.

The readers are requested to make one observation in the film "Incident at Oglala" and reach their own conclusion about the description of that vehicle, by considering that the Fargo jury heard testimony that placed Peltier, in his white over red suburban (alternatively called a van in the film), at the scene of the shooting and murder of the agents. Consider whether or not it is reasonable to conclude that viewing Peltier's vehicle (which is shown repeatedly throughout the film) could be mistaken for a red pickup truck under these circumstances:

• Agents Coler and Williams observed the vehicle at a distance at first, believing it may be the one that contained Jimmy Eagle.
• They start to follow the vehicle onto Pine Ridge and into the Jumping Bull area and are now more concerned, not so much about the description of the vehicle itself any more, but, with approaching it to identify its occupants.
• Peltier's vehicle, viewed at a distance, with its red cab and red lower body, and the white upper portion of the rear of the truck, could appear to be a red pickup truck with a white camper top!
• But as can be readily seen in the sections, Mr. X, The Movie, Mr. X., The Interview, and Mr. X., The Lie, the precise color and description of Peltier's vehicle was almost immaterial; Peltier had completely repudiated the whole idea of anyone else killing the agents and driving off in the infamous red pickup truck. According to Peltier, it never happened that way and in his autobiography, Prison Writings, Mr. X. and the red pickup are NEVER EVEN mentioned.
• The LPDC, "Spirit", and "Incident" repeatedly attack FBI tactics regarding allegedly intimidating, coercing or even buying testimony from Native Americans who were privy to the events of June 26, 1975. Some of these witnesses have recanted (changed) their testimony claiming such FBI methods. The reader should consider whether, as they suggest, this is how the FBI operates. A blanket conclusion such as this negates the thousands of successful FBI prosecutions every year and the successes of some significant and major investigations, Pan Am 103, Unabomber, World Trade Center Bombing, and the Oklahoma City Bombing, just to name a few.

  As a practical matter, where else were these Native American witnesses to go after they had told what they knew to the FBI and testified at the trials? They needed to return to their own people and native land, recanting and blaming it on the FBI ensured their re-entry to their own society. It guaranteed their safety.

• Peltier's defense team, during Peltier's trial, had every opportunity to attack (cross-examine) those witnesses and discredit (impeach) them before the jury. They were not successful. They jury believed the witnesses.

(Please also see: Self-Defense & Leonard Peltier: The Bright Line)