Albion Monitor /News

Bear Lincoln Attorney: D.A. has Ulterior Motives

by Nicholas Wilson

on "Bear" Lincoln Case

Previous update on case

In a bold and unprecedented legal move, J. Tony Serra, lead attorney for Bear Lincoln, filed a motion Monday, June 2nd, seeking to dismiss the death penalty in the murder case.

The case is in the jury selection stage. The basis for the motion was the allegation that the District Attorney's motives for seeking death were "specious and motivated by ulterior considerations."

Ruling out the death penalty as a possibility would be a sanction, or punishment, against the D.A. for seeking the death penalty in bad faith for political and tactical advantage.

Serra's motion listed five ulterior motives he said the D.A. had in seeking the death penalty against Lincoln:

  1. Politics -- He accused Mendocino County District Attorney Susan Massini of political grandstanding while running for election as a judge.

  2. Racism -- He stated "there is an undercurrent of anti- Indian racism prevalent in the D.A.'s office."

  3. Revenge -- Serra wrote that the D.A. was currying favor in the law enforcement community by seeking revenge for the killing of a law officer, despite the prosecution's implied admission that the killings happened in the course of several firefights, "and therefore this case should have been charged as no greater than a manslaughter."

  4. Eliminating pro-defense jurors -- In a death penalty case the prosecution can eliminate potential jurors who would not apply the death penalty, thereby getting rid of the jurors potentially most favorable to the defense.

  5. Hand picking the jury -- Increasing the number of juror challenges by challenging potential jurors under the guise of their position on the death penalty when the real objection was something else.

Tony Serra and D.A. accuse each other of ulterior motives
Serra described a particular example of what he called bad faith and ulterior motivation which occurred last Thursday, May 29, during the questioning of a prospective juror. Serra stated it became obvious that she would never apply the death penalty. "If the district attorney was in good faith, and did not have ulterior motives, it would have been incumbent upon him ... to challenge (the) juror for cause," Serra wrote. "He did not. He did not do so because in the questionnaire answered by (the juror candidate), she had indicated ... that she believed that the defendant was probably guilty."

When the prosecutor, Deputy D.A. Aaron Williams, declined to challenge her, Serra asked the judge to dismiss her for being unable to follow the law regarding the death penalty.

Serra also called attention to the irony that he, as defense attorney, was making that challenge.

Williams opposed Serra's challenge, accusing him of hidden motives, and there was a brief bit of fireworks when Serra pointed at Williams and said he was the one with ulterior motives. The judge tentatively granted the challenge.

Under California law, in death penalty cases a potential juror may be kept off the jury if he or she states that the death penalty should never be applied. The reasoning behind this is that although the death penalty is legal and is supported by a majority of voters, the requirement for unanimous verdict means a single juror could block a guilty verdict or the death penalty.

The Judge raised the possibility of holding a hearing in which D.A. Massini would be subject to cross-examination about her reasons for charging the death penalty
In his June 2nd motion to drop the death penalty, Serra charged that "the only inferable rationale for the bringing of the request for death penalty is as above- outlined," and cited case law supporting his position that, "for such duplicity in the bringing of death penalty as a potential sentence, the sanction is dismissal of the same." If the judge won't go as far as barring the death penalty, Serra asked him to bar the prosecution from making any more jury challenges based on death penalty issues.

In a following interview with KZYX radio, Serra said there will be a hearing on his motion this Friday, June 6. He said Judge John Golden raised the possibility of holding a hearing in which D.A. Massini would be subject to cross-examination about her rationale, policy and procedure for charging the death penalty in this case. If the defense can show that the prosecution did not follow a sound rationale, but was merely trying to gain political or strategic advantage, then the sanction would be striking the death penalty.

Serra said the defense felt it had caught the prosecution in a fatal slip that will give them the opportunity, if the judge grants the hearing, to expose them. "We're quite excited about it," he said. Serra said he knew of no other case where the defense challenged the prosecution for duplicity in asking for the death penalty for the purpose of gaining political or strategic advantage.

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Albion Monitor June 5, 1997 (

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