Looking for Frank Blackhorse
by George Sax
About 15 minutes after an evidentiary hearing in Federal Magistrate Judge Jeremiah J. McCarthy’s courtroom ended Friday morning, Buffalo lawyer Peter A. Reese slumped in a chair in the basement cafeteria of City Hall, diagonally across Niagara Square from the new federal courthouse. “It’s a tale of woe,” he said. He wasn’t referring to the case he’d just made before McCarthy, but to the dogged but largely thwarted eight-year-long effort of his client, Michael Kuzma, to obtain government records of the FBI and Justice Department’s curious dealings with a mysterious figure in a notorious murder case from the 1970s, one Frank Blackhorse.
Kuzma is legal counsel to Leonard Peltier, convicted in 1976 of murdering two FBI agents on the Pine Ridge Indian Reservation in South Dakota on June 26, 1975. Peltier, a leader in the Native American rights organization American Indian Movement (AIM), in prison since his conviction, has never stopped maintaining his innocence. Kuzma, a veteran local attorney, has sought documents in the federal government’s possession that might shed light on its relationship with the shadowy Blackhorse, who was active in AIM in the 1970s, even though it later transpired that he wasn’t an Indian and that his real name is Francis DeLuca. Blackhorse/DeLuca fled the United States for Canada after being indicted by a federal grand jury for the shooting and wounding of FBI Special Agent Curtis A. Fitzgerald on March 11, 1973.
In his federal complaint, Kuzma points out that Blackhorse was also “sought for questioning by the FBI in its Resmurs investigation, which dealt with the shooting deaths of FBI special agents Jack Coler and Ronald Williams at the Pine Ridge Indian Reservation…on June 26, 1975.”
Additionally, Kuzma and others working to free Peltier suspect Blackhorse had involvement in, or at least knowledge about, two other still unsolved murders on the Reservation over 35 years ago. Both Peltier and Blackhorse were arrested by the Canadian authorities in Hinton, Alberta on February 6, 1976, but only Peltier was extradited back to the United States. The US and Canada have left Blackhorse across the border for 36 years, if that’s where he is. “For all we know, he’s in the Witness Protection Program,” Reese told McCarthy at Friday’s hearing. “We’re in the dark.”
The proceeding was focused on 927 pages of public-source records that the government itself had identified as “potentially responsive” to Kuzma’s request over three-and-one-half years ago. (Public-source records are those that have already been published or filed with a court, and therefore can’t violate individual privacy protections.) But when he tried to obtain these, the FBI, after more months of procedural and legal impediments, told him that there was, in fact, no public-source material among these pages.
Reese and co-counsel Daire Brian Irwin were seeking a court-ordered, detailed accounting by the feds of that material, and why it’s exempt from the Freedom of Information Act (FOIA) provisions—a Vaughan Index in legal parlance. “If the government can get away with a blank denial, it’s a bullet-proof defense against FOIA requests,” Reese told McCarthy.
But Assistant US Attorney Kathryn L. Smith, appearing for the US Attorney in Buffalo, William J. Hochul, Jr., responded that this denial was valid. “What is the basis for not accepting it?” she asked. “Why shouldn’t we believe it?”
The government argued that its own review of these disputed pages was a sufficient response to the request. In her formal response, she and Hochul say that one of Kuzma’s options was to “have produced a release, or proof of death, from Mr. Black Horse.” (Presumably, with reference to the death certificate, they don’t mean exactly what they wrote.) This argument prompted Reese to jocularly say to Smith, “Give us Blackhorse’s phone number and we’ll call him.”
McCarthy seemed a little troubled by the arguments. “Is there a middle ground?” he asked at one point. Several minutes earlier, he had expressed his problem with the Vaughan request, saying “…the wrinkle is that the government says it’s not claiming any exemption” from FOIA, because it says it has no relevant documents. The Vaughan case dealt with a Civil Service Commission refusal to turn over documents to an applicant because they contained exempted personnel and private individuals’ information. McCarthy didn’t seem to think he could make Vaughan apply in this case. But he proposed a compromise, after acknowledging the “frustration” of the plaintiff, Kuzma. So, although he was under no obligation to do so, he suggested he examine the 927 pages to determine if they include any non-exempt material. Both sides agreed.
In the Vaughan case, almost 40 years ago, a three-judge appeals panel said the state of the law seemed to give the government an incentive to withhold information by mischaracterizing it because there was no serious consequence if it did. In February, when he filed suit, Kuzma told Artvoice that under FOIA “disclosure, not secrecy, is the focus.” McCarthy seemed at some points during the hearing to be grappling with the continuing potential for suppressing information.
Saturday, Kuzma was the recipient of the League of Women Voters’ Making Democracy Work Award. He took the opportunity to give a brief rundown of these issues and the Peltier case. In the audience were McCarthy and Hochul.blog comments powered by Disqus
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