September 23, 1998

District Attorney Terry Farmer Humboldt County Courthouse
825 Fifth Street
Eureka, CA 95501

Re: Homicide of David Chain

Dear Terry,

Representatives of Earth First (EF!), including some of the nonfatal victims of A.E.'s deadly tree-falling, have asked me to write to you for three reasons.

First, we request that the crime scene at the location be preserved and be carefully photographed and combed for evidence, in light of the consistent statements given by seven of the protestors, which is further corroborated by a video made by one of them that day during their first of several angry encounters with A.E. [Ammons] Detective Juan Freeman tells me that photographs were taken, but that was done before he took the statements of the other eyewitnesses. It is necessary for an investigation to be conducted to determine whether there is corroborating evidence for the victim/witnesses's accounts, not simply a view of the scene to try to confirm A.E.'s lies. My belief that A.E. has lied is based on the press releases of P.L., which presumably are based on what A.E. told them. These outrageous lies, first claiming that A.E. never saw any protestors that day and then claiming he had not seen them for well over an hour, show not only a consciousness of guilt, but is a classic example of a witness who has been proven to be willfully false with respect to one important fact, which is a factor suggesting he cannot be believed with respect to other important facts. Another outrageous lie propagated by P.L.'s propaganda machine is that the tree that struck David Chain was not the tree that A.E. had cut. All the eyewitnesses say that is a lie. An objective investigation is imperative. If PL's disinformation campaign is not based on A.E.'s statements, then PL should be charged with obstruction of justice and involuntary manslaughter, based on their lies, showing a consciousness of guilt, as well as other easily gathered evidence, as explained later in this letter.

Second, we request an independent investigator to be assigned to the matter, one who has not basically made up his mind. Detective Freeman told me that he still believed, after he heard all the eyewitnesses, that the killing was probably an "accident," though he claimed not to have made up his mind. I strongly suspect he will write his report and make his recommendation with the same mind-set he demonstrated during the interviews. I sat in nearly five hours of interviews with Detective Freeman, which were taped-recorded. I watched Detective Freeman take notes, except for the last witness, when he understandably did not take detailed notes, because we were all exhausted. His selective notes, however, are no substitute for the taped statements or the video. When I mentioned the video, for example, Detective Freeman immediately suggested that EF! could have made it the day afterwards. Once you see the video, it is obvious that A.E. is screaming obscenities and threats at the protestors, and that the date and time that the videographer mentions on the tape is not doctored. The original video can be authenticated I am sure, but E.F! does not exactly trust the sheriff's department with it, given the circumstances.

Detective Freeman's attitude during the interviews was more like a defense attorney for A.E. than an objective investigator, though he claimed he was simply playing "devil's advocate." For whatever reason, Detective Freeman appeared to be taking up A.E.'s defense. I do not doubt that A.E. is sorry he killed David Chain. In fact, Carey, who A.E. had befriended the day before, and had actually given her his telephone number and asked her out to dinner, said that A.E. fell down to the ground upon seeing David Chain, and begged forgiveness.

One further aspect of this case must be investigated -- PL's role in the homicide. Every time one of the eyewitnesses mentioned PL's possible complicity in David Chain's death, however, Detective Freeman would firmly state that any mention of PL's role in the homicide was speculative and he did not want to hear anything about it. It is critical that an independent investigator be assigned who can investigate what PL's management told its employees and loggers to do when confronted by protestors in the woods. This is particularly apt as, according to Darryl Cherney, the president of PL, John Campbell, told him about 1 a.m. on September 1, 1998, in a pub in Sacramento after the Headwaters legislation passed, that the loggers were getting "on edge," and he was worried about some protestor getting killed. He told Mr. Cherney he wanted the protesting to end, now that the Headwaters deal had passed, so that wouldn't happen. Moreover, there is a documented history of PL's violence towards environmental protestors, with David Chain's death only the culmination of an increasingly violent response towards the protestors, including a videotape of a tree that nearly hit and killed Julia Butterfly, while she was in the redwood tree she is trying to save. A look at Sea Horse Ranch, Inc. v. Superior Court (1994) 24 Cal.App.4th 446, 456-459, will show that a corporation and high level employees can be charged and convicted of negligent homicide and involuntary manslaughter. It is not enough for Detective Freeman to believe such culpability is speculative. That is what a detective is suppose to do -- investigate to either confirm or rule out corporate complicity or responsibility -- and we request that such an independent investigator with an open mind be assigned to the case in addition to Detective Freeman.

I think it is also necessary to assign an independent investigator who has a clue about what the law is with respect to involuntary manslaughter. Detective Freeman told me several times that he believed "negligent homicide" required a "willful and wanton" act, and insisted he was correct, given his vast experience with investigating murders, compared to my 18 years as a lawyer having represented more than 50 persons convicted of murder, including a capital murder, and hundreds of others convicted of virtually every crime imaginable. While I know that you understand the law, I thought I would outline it for Detective Freeman's benefit.

"The offense of involuntary manslaughter requires proof that a human being was killed and that the killing was unlawful. (CALJIC No. 8.45.) A killing is "unlawful" if it occurs (1) during the commission of a misdemeanor inherently dangerous to human life, or (2) in the commission of an act ordinarily lawful but which involves a high risk of death or bodily harm, and which is done "without due caution or circumspection." (Ibid.) Involuntary manslaughter contemplates "negligent acts which are aggravated, reckless and gross and which are such a departure from what would be the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for human life [or] danger to human life or to constitute indifference to the consequences of such acts. (CALJIC No. 8.46.) [¶] Such criminal negligence is of a higher order of culpability than ordinary civil negligence (People v. Penny (1955) 44 Cal.2d 861, 879, and is measured objectively: if a reasonable person would have been aware of the risk, the defendant is presumed to have had that awareness. (See Walker v. Superior Court (1988) 47 Cal.3d 112, 136-137.)" (Sea Horse Ranch, Inc. v. Superior Court (1994) 24 Cal.App.4th 446, 454.)

Finally, we request that your office charge A.E. with involuntary manslaughter, as there is sufficient probable cause to believe he acted "contrary to a proper regard for human life." (Ibid.) Would a reasonable and "ordinarily prudent, careful person" have fallen the tree under the same circumstances? The answer to that question can and should come from a jury, not Detective Freeman.

Under the law, we believe there is no question that A.E. should be charged at least with involuntary manslaughter in light of the following facts. 1) The video indisputably shows A.E. making violent threats, including falling trees in the direction of the protestors, while raging with anger, within two or three hours before he killed David Chain by falling a tree on him. 2) The time estimates of all the witnesses were that about 20 minutes had elapsed since they last encountered and spoke with A.E., and no more than 30 minutes (one of seven witnesses said 30 minutes, others said 10 or 15 minutes), when they heard the chain saw stop. When the chain saw stopped, the six protestors got up from their circle after having eaten a bit of food, only to see a large Douglas Fir tottering and about to fall. During the chain sawing, the protestors could not interact with A.E., due to the noise, and were waiting for the chain saw to stop to try to persuade A.E. one last time to stop cutting the trees. The protestors all sat in a circle, without an inkling that A.E. was cutting down a tree on top of them. No one, including Zoe, who was above both the group and A.E., heard A.E. yell any warning that a tree was about to fall. Unfortunately, according to witness Carey, when they got up from their circle and saw the tree tottering, David Chain appeared to freeze, having started to go with Carey up a very steep hill, while the others were heading down hill. Five others narrowly missed being killed -- within 10 feet or so of the falling tree -- while David Chain was unable to avoid the tree.

I do not doubt and none of the eyewitnesses believed that A.E. was intending to kill them. In fact, two witnesses said that A.E. said he had not known they were there when he came up to them as they were screaming after he dropped the tree at them. But virtually all of the eyewitnesses believed, based on A.E.'s words and actions that day, that he was trying to scare them and was intentionally dropping trees in their direction. If the eyewitnesses are believed, that conduct is sufficient to constitute manslaughter. The generally balanced, compassionate, nonvindictive statements of the eyewitnesses and victims of A.E.'s recklessness are in flagrant contrast to P.L.'s lies, presumably based on A.E.'s lies about what happened out in the woods, before he knew there was a videotape of him threatening to get his pistol and threatening to fall trees towards the protestors.

In short, we expect this case to be charged at least as an involuntary manslaughter. We have little doubt that if the tables were turned and a reckless, life-endangering act of a protestor had resulted in the death of a logger, a charge of second-degree implied malice murder would be contemplated. It is possible to analogize what happened in the woods with life-endangering driving while intoxicated, which can be charged as implied malice murder, but we are not asking for such a charge. EF! and the environmental movement in general are no fans of overcharging by D.A.s and are not seeking retributive punishment for A.E., such as prison. That is for a judge to decide. But we are outraged by P.L.'s disinformation campaign and the apparent choice of A.E. to hide behind these lies, and refuse to accept responsibility for his criminally negligent action. His name has not even been mentioned in the papers, even though he is not a juvenile.

If your office does not see fit to charge this crime, we will seek help either through the A.G.'s office or the U.S. Attorney's Office, as was necessary in the South in the 1960's, when law enforcement and juries sided with KKK members accused of violence. I am confident that your office will independently review the evidence in the case, preserve the crime scene, assign an independent investigator, and refuse to cave into what is probably enormous pressure to ignore A.E.'s lies and adopt the official cover-up position by P.L. We trust that you will charge this as any other criminally negligent, if not reckless, homicide, and either agree to a plea bargain in which A.E. accepts responsibility for this unnecessary killing, or let a jury decide the level of A.E.'s culpability.

Very truly yours,

RICHARD JAY MOLLER

cc. Humboldt County Sheriff Dennis Lewis CDF