Bear Lincoln Retrial Delayed Until January

by Nicholas Wilson

Lincoln was in court for a brief hearing July 30 when Mendocino County DA Susan Massini and defense attorney Phil DeJong agreed to the delay. Massini told the Monitor August 5 that it was defense attorney Tony Serra who requested the delay due to his heavy trial schedule through October.

The jury unanimously acquitted Lincoln of all murder charges, but split 10-2 for acquittal on the lesser charges of voluntary or involuntary manslaughter of the deputy. The majority made it clear through public statements that they believed Lincoln did not know he was dealing with law enforcement officers and had fired only in self-defense after seeing his friend shot down in front of him by unseen assailants.

Massini announced last December that she had decided to retry Lincoln, despite pleas from a majority of the jurors urging her not to. She is running for reelection in November, and she said she would personally prosecute the retrial. Her challenger, Norman Vroman, is on the record saying he would dismiss the charges against Lincoln if elected.

Sheriff James Tuso, a personal friend of the slain deputy, attended the Lincoln murder trial daily, joining the Davis family in the front row. He issued an emotional press release condemning the jury's not guilty verdicts; clearly, Tuso has been a principal source of pressure for a retrial. Tuso is not running for reelection.

Lynda McClure, who is active with the Lincoln-Peters Defense Alliance, said the delay means, "Massini gets to have her political cake and eat it too. She gets to appear tough on crime without having the embarrassment of losing the case right before the election." McClure said that many believed Massini had counted on Judge John Golden overruling her decision to retry, allowing her to take a tough- on- crime political stance without facing the consequences. They speculate that Golden saw through the tactic and refused to take the political heat himself by overruling her, according to McClure.

Massini agreed last week that Lincoln will not have to come up with $5000 to renew his $50,000 bail bond, which expires September 23, but can remain free on his own recognizance. Massini explained to the Monitor that Lincoln has faithfully attended all his court appearances. She added that this gives her a stronger hold on Lincoln, because any willful failure to appear in court could be punishable by up to three years in prison.

At Massini's request last December, Judge Golden renewed a strict gag order barring Lincoln, his attorneys, the DA, and law enforcement officers from making any comment or disclosure of evidence to the public. Last October a visiting judge found Massini guilty of violating the gag order by making comments about the case to Santa Rosa Press Democrat reporter Mike Geniella. The judge sentenced Massini to a fine and jail time, but suspended the sentence provided she did not violate the gag order again.

Massini told the Monitor last week that the order she requested was only to formalize the professional rules of conduct of the California State Bar Association. "It isn't anything that isn't in place in any other case, we just formalized it," she said. When it was pointed out that the gag order was considerably more strict, Massini said, "The clerk may have put it that way, but what was requested was simply that the professional rules of conduct be followed. That could be termed a gag order, but it isn't anything that's extraordinary. The intent is just not to inflame juries."

Asked if the Lincoln retrial is an election issue for her, Massini replied, "I'm sure it is for some." She said that in light of "the interesting fiasco or whatever you want to call it of a year ago, I'm unable to talk specifically about it. I can only give a generic answer about how the DA's office goes about determining whether to charge a case. This is not the first time that we have retried a case. In one, the verdict was 8-4 for acquittal. It's not just the numbers that determine the decision, but rather the entire process. I have read about as much as I could and talked to as many people as I could, and that's all I can say about that."

Asked if she might consider dropping the charges in light of the new sheriff taking office in January, Massini replied, "No."