UKIAH, CA -- As the start of the Bear Lincoln capital murder trial draws near, with opening
arguments expected July 21,
several crucial issues have surfaced that could prevent the
trial from going forward as planned.
In continuing fallout from possible jury tampering by a deputy sheriff, the court awaits a report from the state Attorney General's office.
Deputy District Attorney Aaron Williams told
Judge John Golden that the state agreed
there would be a conflict of interest if the Mendocino District Attorney
investigated the allegations against Correctional Officer Brandon
Van Camp, an employee of the Mendocino County Sheriff's Office.
After defense attorney J. Tony Serra demanded immediate action while events are still fresh in the minds of participants, and said that without pressure the A.G. would delay and "sweep it under the rug," the judge ordered that the A.G.'s office expedite the investigation and file an interim report by July 9.
The judge ordered that the investigation include all matters testified to by potential juror Harry Rothman and all questions raised in a motion filed by the Lincoln defense. Rothman told the stunned court June 23 that Deputy Van Camp told him in the courthouse hallway that Lincoln had confessed (which is untrue). According to Rothman, "We were having a conversation. It seemed to come almost out of the blue, ... after he said that, it was like everything else in my brain stopped.... Then he said that I shouldn't say he said it because it wasn't a good idea."
Rothman also said a friend told him about defense theories of the case, including the "friendly fire theory" that Deputy Davis was killed by a bullet fired by another deputy. Rothman said his friend had spoken with defense jury consultant David Colfax, who told the friend that the defense thought Rothman would make a good jury foreman. Rothman was excused from being a juror due to what the judge called "intolerable influences," and also because of his views on the death penalty.
Defense attorney Diana Samuelson filed an affidavit accusing Van Camp of taking advantage of crowded conditions in the courtroom that same day, charging he tried to eavesdrop on conversations at the defense table and spy on notes between attorneys and with Lincoln.
Deputy Van Camp appeared in court June 26 to answer questions about his alleged statements to Rothman. The Lincoln defense had filed a motion demanding that he be prosecuted for felony jury tampering, and demanding an investigation into whether he said things to other potential jurors, and whether he was acting under the direction of superiors or in collusion with other deputies.
Serra had said earlier if investigation showed there was jury tampering the defense might move for a mistrial. That would require the whole process of jury selection be started over, and would make it unlikely the trial could be held in Mendocino County.
Because Van Camp may be subject to criminal prosecution, he has a right not to testify against himself, and Judge Golden would not allow him to be questioned immediately by Lincoln's defense team. Santa Rosa attorney John Shields is representing Van Camp and said he knew what the deputy would testify, and felt "confident there is no cause for criminal charges." Van Camp was ordered to return for possible questioning on Friday, July 11.
also announced last week that,
despite previous objections from both sides,
future hearings on admissibility of evidence will be closed to press and
public, and related records sealed. Serra objected again on the basis of
the First and Sixth Amendments.
Golden justified his decision citing the high profile of the case in the local media. Evidence ruled inadmissible had reached some potential jurors via newspaper headlines. This resulted in several being excused when they said they couldn't ignore the information and reach a verdict based only courtroom evidence.
Judge Golden also ruled out the alternative of sequestering the 12 jurors and 6 alternates for the duration of the four-month trial as being too great a burden on jurors and the court.
Golden's order was made known, the defense renewed a motion
for change of venue. Because of the gag order, the attorneys are unable to
comment, but it appears that the order closing some hearings was the last
straw for the defense, coming after the jury tampering shocker of the
previous week, the gag order imposed last month, and also reflecting how
difficult it has been selecting a jury.
The motion states that "there is a reasonable likelihood that Mr. Lincoln will not receive a fair and impartial trial in Mendocino County." It notes that when the earlier motion was withdrawn in exchange for a thorough individual questioning of juror candidates, "both court and counsel reserved the right to consider change of venue if jury selection proceedings indicated that such a course was necessary."
Later the motion continued, "Throughout the jury process it has become clear that the jury pool has been exposed to prejudicial media coverage resulting in a large number of potential jurors who believe that Mr. Lincoln is probably guilty and/or who have been informed of Mr. Lincoln's past criminal history. This has led to the excusal of a significant percentage for bias." No hearing has been scheduled on the motion, and it remains to be seen whether the defense will pursue it.
Twenty-nine of the previously qualified panel of 89 were excused two weeks ago based on new information they had learned about the case, second thoughts about answers they gave earlier, or requests for hardship exemptions. This left only 60 potential jurors, less than the minimum of 70 needed to select the 12 jurors and 6 alternates after the exercise of up to 52 peremptory challenges. Additional jury candidates are now being questioned, and the final stage of jury selection is scheduled to resume Monday, July 14.
In yet another
bizarre development, the prosecution a few weeks ago
obtained a cassette recording of defense attorney Philip DeJong, apparently
either giving dictation or speaking to someone in his office about the
Prosecutor Williams filed a motion asking the judge to listen to the tape and determine if it contained information which should be turned over to the prosecution.
The prosecution said it got the tape from Round Valley resident Doug Hutt, who approached a prosecution investigator and said he got the tape from an unnamed person for $15. The investigator wrote in a sworn affidavit that he immediately stopped listening to the tape when he recognized DeJong's voice.
DeJong told the court that he had never released any recording of his voice to anyone, and the only way it could have been obtained was via espionage, by burglarizing or bugging his office.
He vehemently objected to the prosecution claiming any right to the tape, arguing that it was stolen property. Williams responded that the prosecution had done nothing illegal, and had done the honorable thing in asking the court whether they could listen to the rest of it. Judge Golden ordered the tape turned over to DeJong "forthwith."
filed with the court in June a required brief summary of the case. It states: that the
deputies began shooting without warning or identifying themselves the night of April 14,
1995, killing Bear Lincoln's lifelong friend Acorn Peters, who never fired the rifle
he was carrying. After a brief interval the deputies fired at Bear Lincoln who was some
distance down the road. Lincoln "fired back in self-defense and fled the scene."
"The defense asserts that (1) Mr. Lincoln did not provoke this incident in any manner, (2) the prosecution will not be able to prove beyond a reasonable doubt that any shot fired by Mr. Lincoln was responsible for killing deputy Davis, (3) every action taken by Mr. Lincoln was done in self-defense. (4) that a cover-up ensued, which included the making of false statements and reports by deputy Miller regarding the incident, and the negligent and/or intentional failure of investigating officers to preserve evidence at the scene, and (5) law enforcement personnel failed to follow proper police procedures beginning with the Britton homicide investigation and continuing throughout the Davis/Peters homicide investigation, which included acts of misconduct, unlawful searches, and excessive force, fueled by a bias and prejudice against Indian people." The statement was signed by Serra.
will be held over the next full moon weekend in Round Valley,
and the following Monday in Ukiah. A "Gathering for Justice" will begin at
dusk Saturday July 19 at the Hidden Oaks Campground in Round Valley, and
continue until the morning of July 21, when there will be a caravan to the
courthouse, followed by a press conference and support rally. The gathering
will feature speakers, music, camping and barbecue. Saturday evening will
Sunday speakers will include American Indian Movement leader Dennis Banks, recently freed longtime prisoner Norma Jean Croy, former Congressman Dan Hamburg, attorneys Serra and De Jong, and civil rights attorney Dennis Cunningham, who is handling Round Valley residents' class action civil rights suit against police agencies and government bodies stemming from alleged widespread abuses by law enforcement in the aftermath of the death of Deputy Davis.
This will be a non-alcohol event, and will feature traditional drumming and dancing, and also music by a number of bands. The events are co-sponsored by the Round Valley Indians for Justice, Lincoln/Peters Defense Alliance and the V.O.T.E. Action Committee. For information call Lynda McClure at (707) 468-1660.
Albion Monitor July 8, 1997 (http://www.monitor.net/monitor)
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