Bear Lincoln Retrial Set For February

Defense attorney Philip DeJong asked the court to take into consideration the unusual support for Lincoln from the jury in his earlier trial, noting that almost all of them have become outspoken advocates for the Native American man.

DeJong also told the court that renowned lawyer Tony Serra intended to withdraw from the case, but the Monitor confirmed on Tuesday that Serra will again lead the defense team during the new trial.

Although prevented by a gag order from commenting on his case, Bear Lincoln spoke briefly, thanking everyone for turning out in the rain to support him. "I'm really happy to see all of you here," he said. "I just want to tell you that I love you." A prayer began the rally, which closed with traditional drumming and chanting.

Read to the crowd was a sampling of letters to the D.A. from those following the case worldwide. "The story has gone Internet and is out all over the world. The world is watching and the truth will be known," wrote a Texan accusing the D.A. of retrying Lincoln because of political ambition.

A letter from New Orleans said: "I appeal to you to drop this evil vendetta. Instead, investigate the police for their wild, irresponsible, and ultimately murderous action that night, which resulted in tragedy. You are only enhancing the evil by rewarding police misconduct with the retrial of an innocent man."

From London, England: "This case was tried by a jury that voted 10-2 for acquittal of these charges. Why are you retrying this man for a charge he has been acquitted of?" Finally from Canada: "You're certainly putting Ukiah on the map by your hounding of Bear Lincoln. Would your time not be better spent prosecuting the uniformed thugs who terrorized the Round Valley Indian Reservation? Human rights organizations [in Canada are following] your vindictive campaign."

Also at the rally were the five jurors, representing the ten who had recently authored a letter to the public explaining their verdict and belief that Lincoln acted in self-defense. Although not read at the rally, their letter was published in the Monitor and many regional newspapers, except for the New York Times-owned Santa Rosa Press Democrat.

The principle of double jeopardy bars retrial of any matter decided in the first trial, DeJong argued. The jury unanimously found Lincoln not guilty of murder. "The prosecutor stated in first trial that this was either a murder case or not guilty," DeJong said.

Double jeopardy prevents the prosecution from retrying the murder charges and then arguing to the jury that murder's been proved -- but you can only find him guilty of manslaughter.

DeJong said he could understand that it's difficult for them to let it go, given the prosecution's position in the first trial, but that "it's appropriate at this point for there to be an end to this case. It's time for the community to go forward without another month-long spectacle of divisiveness."

"Three judges have determined previously that there was sufficient evidence to try the case," she argued. The jury was able to decide the murder charges, but as a matter of law, they didn't decide the manslaughter charges (because the jury did not vote unanimously for acquittal). The previous prosecutor's statement that it was murder or nothing has no bearing because it's not evidence.

As to Lincoln's two years in custody, his insistence on having Serra defend him caused a year of the delay, she said. "Double jeopardy means the same exact charges in two separate courts," she argued. "The jurors obviously found there was no premeditation, deliberation or lying in wait at the time deputy Davis was killed. And they also found that he didn't act on the spur of the moment without premeditation and deliberation. But there are two jurors who felt there was sufficient evidence [for manslaughter], and as long as there is a hung jury, it is the right of the prosecution to go forward with the charges that were not decided."

Massini turned to the matter of publicity about the highly controversial case. A gag order in one form or another has been in place since the beginning, she said. But there are advocates for Lincoln who are not members of his defense team, and beyond the reach of the gag order, which the judge reinstated December 5, acting on Massini's request.

"Even today there were numbers of people who spoke on the courthouse steps into microphones and in front of TV cameras, excoriating the prosecution and giving the defense side to the media and therefore to the possible jurors. The defense side has been on local media and television at least once a week, and most likely more often. So the concept of getting a fair trial in Mendocino County seems further and further from our grasp."

Massini conceded that she was the only one convicted of violating the gag order (and was held in contempt of court for slipping information to the Santa Rosa Press Democrat). But she complained that "the defense's information is going out in all forms of media, all over the United States and the world. And we have been portrayed as a group of people who despise Native Americans, who are willing to trample on their rights no matter what happens. And it's become a real embarrassment to a great many people. I, too, believe there needs to be a settlement in this matter, and the best way is to have a jury trial and have a decision one way or another.

"Another jury presented with the evidence may come to a different conclusion. That's the way our system works, and that's the way I ask for it to work. There needs to be a final determination of this case one way or another. I am not here to persecute anyone. I'm here to present evidence to a jury for them to decide. They have decided on two of the major counts, and I have fully accepted that. They were unable to decide on other counts, and I wish to have this matter decided fully, entirely, and as soon as possible, one way or another.

"The verdict is not as important as the decision. I ask the court to deny the request to dismiss in the interest of justice and the motion to dismiss based on double jeopardy and allow the prosecution to go forward, and the defense to go forward as well," Massini concluded.

Massini argued that there are no elements of manslaughter that were settled in the first trial, and that double jeopardy didn't apply.

DeJong rejoindered that it was simply not possible for the prosecution to prove manslaughter based on the evidence presented in the first trial, which they are now locked into. For one thing, they can't try to prove Lincoln started the incident, because then it would be murder, and double jeopardy prevents their arguing that. "They would have to argue that the officers shot Mr. Peters dead in the road, through no fault of Mr. Lincoln, and that Mr. Lincoln was provoked by that into shooting Davis, but that's not the argument they have made," concluded DeJong.

With the arguments done, Judge Golden denied both the double jeopardy motion and the request to dismiss the charges in the interest of justice. He gave no explanation for his decision and set the next hearing for February 6.

Former juror Dorene Burdick was incensed at Massini's statement that there was no double jeopardy bar to retrial because the jury was unable to reach a verdict based on the evidence. "She's hanging by a thread. That's a lie, because the two jurors who could not agree unanimously with the other ten of us were both shown to be completely biased. They did not base their decision on the evidence. One refused to discuss the evidence at all, and the other did not have any evidence to stand on. It was purely bias. And four of us jurors told (prosecution investigator) Warnock and Massini to their face that that was the case. So she's lying. The jury was not hung because of the evidence. It was purely bias."

Cyndi Pickett, partner of Lincoln's slain friend Acorn Peters, said, "I'm severely disappointed, sick, and unhappy over the decision today, but I'm not at all surprised. As I told Bear, now we go to war. There are a lot of unanswered questions about what really happened, and we're going to have to regroup and go for it."

The Monitor was contacted this morning by Serra's Mendocino host, who said he "received a call from (Serra's) staff this weekend wondering if he could stay at my home again, beginning in March for the new trial." Serra's office confirmed that such arrangements were being made.

"Tony is certainly a great asset to the case," said Lynda McClure of the Lincoln-Peters Defense Alliance. "I don't doubt that Phil DeJong could handle the case without him, but of course it will be better with him, and it will be interesting to see Tony and Susan Massini interacting."

After a tense night, Lincoln and Cyndi Pickett arrived safely at the home of Cora Lee Simmons, and his whereabouts at time of the shooting was confirmed by at least two witnesses. A source confirmed that the deputy in charge stated that Lincoln was not a suspect. A 33-year-old woman was arrested Saturday after being identified by witnesses as one of the persons firing shots into a home where two teenagers were wounded, the sheriff's department said.