Bear Lincoln Attorney: D.A. has Ulterior Motives

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.

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.

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.