after the shootings that left two
Native Americans and a Mendocino County Sheriff's Deputy dead, the capital murder trial of "Bear" Lincoln officially
began April 15 and is expected to last until October.
Jury questioning began May 5, three days after the judge imposed a gag order prohibiting anyone involved in the case from talking to the media. The defense said they will appeal the gag order of presiding judge John J. Golden.
New to the case, retired Lake County judge Golden replaces Mendocino County Superior Court Judge James Luther who presided over much of the pre-trial wrangling in the case, and has since retired from the bench.
Saying he was concerned about media coverage prejudicing jurors and witnesses, Judge Golden on May 2 imposed what appears to be a total gag order. The order apparently bars everyone involved, even Lincoln himself, from saying anything about the case to media except during open court.
In addition to the gag order, Judge Golden revoked all permissions which had previously been given for video, photography and audio coverage of the case. The judge said the media could reapply for coverage after the jury is chosen. Under a revised Court Rule effective the beginning of this year, electronic and photo coverage of courtroom action is much more tightly restricted than before, and judges are given complete discretion to allow coverage or not. The tightening of the rule is a reaction to media excesses during the O.J. Simpson criminal trial.
oral arguments on the gag order, prosecutor Williams supported it,
citing recent news stories "supportive of Mr. Lincoln" in the Anderson
Valley Advertiser (AVA), on local radio and "on the Internet." Williams called
for a new gag order with teeth "to prevent poisoning the jury pool."
Lincoln's court-appointed attorney Philip DeJong argued against the gag order, noting that law enforcement's version of events has received vastly more coverage than Lincoln's. He said no gag order would prevent "slanderous and libelous publicity" such as the Ukiah Daily Journal's recent publication of a long Lincoln rap sheet of mostly minor skirmishes with the law. DeJong argued, "Rendering the defense mute after letting the prosecution case be reported for months on end will not result in a fairer trial."
The prosecution's case would not be hurt by bad publicity, said DeJong, and the prime reason for gag orders in other cases was to protect the defendant from leaks from the prosecution side. He argued that the proposed gag order would be a violation of Lincoln's rights. Attorney Serra said the gag order will immediately be appealed.
Some of the publicity Williams objected to was a new letter to the editor from Lincoln in the April 30 edition of the AVA. In it Lincoln wrote that he wanted "to make the public aware of the gross racism against Native Americans in the so-called justice system in Mendocino County," and pointed out that "the majority of death penalty cases in this county have been against Native Americans."
Lincoln continued, "I urge the public to follow this case and be concerned, because corrupt law enforcement affects everyone sooner or later. We will prove in the trial that the Sheriff's deputy has covered up their actions against the Indian community, and that they are the ones who are guilty of lying in wait and ambushing and murdering Leonard Peters."
Several months ago Lincoln's attorneys withdrew their motion for a change of venue, citing bias against Native Americans in general and Bear Lincoln in particular in Mendocino County. Although the great majority of whites who had heard something about the case believed Lincoln was guilty of murder, Lincoln's legal team decided that the best course would be to conduct intensive individual questioning of potential jurors to weed out those with bias.
The defense made a major effort in January to challenge the racial composition of the master list of potential jurors, filing a motion to add more Native Americans. The list is made up solely from the registered voter list plus a list of licensed drivers with addresses in Mendocino County.
In February hearings, an expert witness testified that the majority of reservation residents don't register to vote due to a deep-seated distrust of the government based on a history of abuse and mistreatment that amounts to genocide.
Indian attorney and tribal judge Lester Marston testified that fully 90 percent of some Northern California tribes died within a short time after whites began arriving in large numbers in the 1840s and 1850s. Many Indians now living have relatives that were alive a few decades ago when the public policy was to exterminate them, he said, noting that until 1910, they were hunted down and killed. He added that even today, most Mendocino County Indians consider Mendocino County the enemy.
Marston concluded his horrifying written overview of the historical relationship between American Indians and the County of Mendocino with the following statement: "As this overview illustrates, the relationship between the two has been one of constant conflict. For these and other reasons, the majority of Indians in Mendocino County literally do not want anything to do with the State of California, the County of Mendocino, or local non-Indians."
Marston also testified that few reservation residents have driver's licenses because few can afford to own cars. As a result, nearly 2 out of 3 registered adult tribal members are not on the jury master list even though Indians make up about 4 percent of the population. Defense consultant surveys that found 80 percent of whites believed Lincoln guilty also found that 80 percent of Indians believed him innocent.
The defense asked the court to throw out the present jury master list and order the county to make up a new one by adding to the names of all adults on tribal rolls of the ten Indian reservations in the county. Judge Golden denied the motion, ruling the defense had not proved that Native Americans were underrepresented, or that the county systematically excluded them, and therefore he had no basis in law to order that more be added.
In March, Judge Golden denied a motion by prosecutor Deputy District Attorney Aaron Williams to ban all references in court to the race or ethnic background of Lincoln, the victims and witnesses. Williams argued that race was irrelevant, and apparently thought that no one would notice Lincoln was Indian if it were not mentioned. The judge agreed with defense arguments that Lincoln's race and cultural heritage provides a context for what happened on the fatal night.
After a series
of delays, jury selection began April 15 with the summoning
of over 3800 potential jurors. Since then, almost all of those have been
excused based on their answers to a written questionnaire or due to
requests to be excused due to hardship. Jury selection is expected to take
For the next five weeks, the remaining 383 juror candidates are being called in at the rate of ten per day for individual questioning by the judge and the attorneys for both sides. At this stage, called a Hovey voir dire, the questions are probing for certain kinds of bias that would exclude the person from jury service, and are limited to six topics approved by the court. This process will eliminate all but 90 candidates.
With only one potential juror in the courtroom at a time, Judge Golden asked each person if they would be able to consider voting for the death penalty, and whether the race of Bear Lincoln, the slain persons, or the witnesses would affect their ability to be fair and impartial. Other questions dealt with bias regarding law enforcement officers, the use of alcohol, and gun ownership.
Of the ten juror candidates scheduled to appear the first day, three were absent. Of the remainder, three were Native Americans, a surprise considering there are so few in the jury pool.
Cora Lee Simmons, Chairperson of Round Valley Indians For Justice, was excused immediately because she is a listed witness for the defense. A second woman, also a Round Valley Indian Reservation resident, was excused because she said she could not vote for the death penalty -- she said she had lost a baby, and could not do that to Bear Lincoln's mother.
The third Native American, a Coyote Valley Reservation man in his fifties, was challenged by the prosecutor on the basis that he was uncertain about the applicability of the death penalty in this case. Judge Golden denied the challenge, saying the man indicated he could follow the law and the court's instructions in this case. He was ordered to return to court on June 9, when the next stage of jury selection, the general voir dire, will begin.
Judge Golden also denied a challenge of another man who is generally opposed to the death penalty but said he could apply it when the law requires. Another man was excused after he said he could never apply the death penalty in this case. He said it should be reserved for extreme cases like those involving cannibalism or multiple murder, and otherwise was "barbaric and wrong."
Two other juror candidates were not challenged by either side. Of the total of seven potential jurors the first day, four are still candidates. Of the three Native Americans, only one remains a potential juror. During the final stage of jury selection beginning July 9, each side will be able to eliminate a number of juror candidates by peremptory challenges, without stating a cause.
Beginning with his court appearance April 15, Lincoln no longer is wearing orange jail jumpsuits and shackles, but now wears a dressy Indian "ribbon shirt" with colorful embroidery and multicolored ribbon ornamentation.
Albion Monitor May 9, 1997 (http://www.monitor.net/monitor)
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