One Charge Dismissed

But Serra also began painting a chilling picture of the deputies pursuing eyewitness Bear Lincoln after they mistakenly shot to death an innocent man. The evidence, Serra remarked to the judge, "... shows an expectation of combat, and I would argue they were going out seeking Bear Lincoln to shoot him. That's why they were going down the road with the automatic weapon at the ready, because they knew that he was a witness to their unprovoked murder of [Acorn] Peters."

The judge's ruling was on a motion for acquittal filed by Serra after the prosecution rested in the Bear Lincoln murder trial. Serra argued that the evidence doesn't support the murder charges.

A motion for acquittal is commonly made once the prosecution rests its case. Out of the presence of the jury, the defense argues that the prosecution didn't present enough evidence for a conviction, or at least as to some of the alleged crimes.

Serra began by saying he wanted to include acquittal on the murder charge itself, rather than limit the motion to only the attempted murder charges and lying-in-wait special allegation. The main question is whether evidence supports deliberation and premeditation -- essential in distinguishing murder and attempted murder from manslaughter.

Deputy Miller's statements have changed over time, but he recalls that Leonard Peters turned toward the officers, was lit up, was warned to drop his gun, said, "fuck you, drop your weapon," and fired one or two shots. Miller said he saw the flash of gunfire. Leonard Peters was shot thru the head, collapsed instantly and probably died quickly.

Now consider the state of mind of Bear Lincoln. This was unexpected. There's no evidence he saw and identified the officers, at least at this point. Even if Miller was right and Bear fired when Leonard Peters was shot, it was spontaneous and unplanned. There's no evidence he fired at any person or in any particular direction and the shots were all fired in darkness. There is no foundation to infer that Bear Lincoln even fired at any object. He fired in self-defense and in immediate reaction to gunfire toward him and his friend. Bear Lincoln's state of mind immediately after the first gunfire was emotional and responsive. The most that could be supported by the evidence would be manslaughter.

It is not difficult to conclude that in the first firefight there was no premeditation or deliberation. The prosecution isn't even arguing that; they're talking about what they term "the second firefight."

The prosecution says Miller's pocket tape recording covers the second firefight. There's no proof of that, but assuming the tape is what they say, Miller has said twice that he believes Davis fired once or twice while Miller was falling off the road and getting back up, so there's no proof that the first two shots heard on the tape were not Davis firing. The last statement on the tape was Miller saying "Get down," which implies Davis was alive after those two shots. So even if my client did fire the two shots heard on the tape, they didn't kill Davis.

They are arguing that those shots were fired by Bear Lincoln and that they began the second firefight. Even if that were so, are those the shots of premeditation? They are a man who fears for his life and they're trying to kill him. This is grossly overcharged. This case drips with evidence of the heat of passion; with Bear's agony of seeing his best friend killed by ambush.

They're grasping at straws. At the very end of the prosecution case they put in evidence Bear's letter to his girlfriend where he said, essentially, "They ambushed us and killed Acorn right in front of me, but they didn't even see me," and they argue that it refers to the second firefight, but the context in the letter is the first firefight, the ambush, when they shot Acorn.

Lastly, the prosecution bases the charge of attempted murder of Davis on a theory that he was wounded in the first firefight, but all of the evidence points to that he suffered his hand wound in the second firefight. The attempted murder charge has no evidence in support.

Davis did indeed think he was hit after the first firefight. He was looking for a wound. The autopsy doctor said the hand could possibly still be functional because the tendons weren't severed, and it's possible it didn't bleed much. It's possible he had the hand wound but didn't feel it or see it.

About lying in wait: There was a 3 min. 50 sec. gap. There is a way to fix the time on the pocket tape by the radio dispatch tape time. I don't know how long defense thinks one must have for premeditation and deliberation, but waiting for several minutes is certainly enough time. What we have here is the classic, simple lying in wait by concealing his position and waiting for an opportunity to shoot them by surprise.

We know Davis never fired from the second location. Davis had four bullets missing from his pistol, and all four shell casings are accounted for next to the car in the first firefight. Miller testified he never fired the M-16 on semiautomatic that night. It had to be Lincoln firing from his place of concealment that's heard on the pocket tape. In his letter, Lincoln doesn't specify first or second firefight, because he doesn't separate it into two firefights. He just says they never saw him that night. There's evidence that he watched and waited, concealed himself, and had plenty of time to premeditate and deliberate. Just because you know hostile forces are out there, as in wartime, doesn't mean you expect to be shot at a particular moment.

There are three areas where the prosecution evidence has problems: They wrongly infer from the letter that Bear was writing about hiding preceding the second firefight, when it clearly refers to simply not being seen at the time of the first firefight. Secondly, a 4-1/2 minute time interval does not equate to watching and waiting; he could have been hiding in fear for his life. And lastly, the alleged circling around behind is not supported by any credible evidence.

In conclusion: There is no evidence here to support a lying in wait or of any premeditation or deliberation.

Williams said he didn't think it was significant to the attempted murder charge.

Tony Serra responded that it's critical. The hand wound and crease on the police vehicle hood are the only evidence of bullet impact that could possibly have occurred in the first firefight. The hood crease came from Miller's shot and there's no evidence of the hand wound during the interval between the firefights, so there's no physical evidence that Bear Lincoln fired at the officers, or even in their direction, in the first so-called firefight. The court hasn't heard all the evidence yet, but in our opening statement the court heard that Bear fired in every direction after he was fired on. He didn't fire at all toward the officers, didn't know where or who the assailants were.

Judge: "So the argument would be if Davis didn't sustain the hand wound in the first firefight, that's a circumstance tending to negate deliberation and premeditation?"

Serra: "Yes, for the first firefight. Just as significantly, if it didn't occur during the first firefight, it occurred during the second firefight, and it leads to the all important blood trail. Davis disappeared (from Miller's sight) for only 5 seconds (after the first firefight). He could not have run all the way down to the gate and back in 5 seconds. It had to happen during the second firefight, and he was hit, and he bled, and he ran all the way down to the gate, and the drops every 20 ft. are his blood. And Miller is not telling the truth. Something happened out there after the first firefight that Miller admits on the stand he cannot account for. The blood trail of Davis is all the way down to Bear's gate.

"The prosecution will argue that the police vehicles must have picked up some of Davis' blood at the hilltop scene and tracked it down the road when they drove into Little Valley later. That's pure baloney. The spots are right down the middle of the road except where a runner would cut inside the corners. The spots are similar throughout the trail. If it were a vehicle, you'd expect there would be more at the beginning, and then it would dwindle and then end. These are equal distance all the way down there. Therefore, we have to be sure (Davis' hand wound) happened in the second firefight. It was probably from a shot by Miller; we'll never know. And therefore it belies the entire veracity of Miller's version. It's very, very important when Davis was bleeding from the hand wound, and the evidence militates against in every way that he received it in the first firefight.

Judge: "Could I summarize your argument concisely but accurately by stating that evidence that Davis did not sustain the hand wound in the first firefight tends to prove that Lincoln was not firing at the officers when his gun was discharged, and that tends to disprove any intent to kill with respect to the first firefight?

Serra: "That is correct, your honor."

Williams: The first attempted murder count is of Davis in the first firefight. The second attempted murder count is of Miller during the second firefight. I could have charged attempted murder of Miller also in the first firefight, but the hand wound shows he was shooting at Davis.

Judge: Isn't premeditation and deliberation equally an element of attempted murder as it is of actual murder?

Aaron Williams: Yes, I have to show both for attempted murder and murder. My point is that it's a premeditated, deliberated, attempted murder whether or not Lincoln is a good shot. If Lincoln fired at Davis and completely missed him, it's still attempted murder. I separated the attempted murders of the two into the two firefights, Davis in the first, and Miller in the second. Miller felt rocks and dirt hit him from a near -miss in the second firefight, just before he fell.

Judge: Turning to the lying in wait allegations, at what point does that begin?

Williams: After the first firefight terminated.

Judge: "According to the Supreme Court, the lying in wait concept involves three elements: a concealment of person or purpose; secondly, a substantial period of waiting and watching for opportune time to act; thirdly -- and this is the element with which I am most concerned right now -- immediately after waiting and watching for an opportunity, a surprise attack on an unsuspecting victim from a position of advantage. Do we have evidence of a surprise attack, or evidence of an unsuspecting victim?"

Aaron Williams: Yes. No way would Davis, a trained Navy Seal, stop in middle of road to check Peters' body if he suspected in any way that someone would start firing on him at that point. Also Lincoln's path from concealment was immediate; Miller saw movement and then there was gunfire, and the tape backs that up, that there was gunfire, and not from the officers.

Judge: "Could it be said Davis was suspicious he was going to be attacked when he checked Peters' body?"

Aaron Williams: Yes, in the sense of hostile environment as in a war situation, but not of specific danger at that moment. He did not expect an attack at that point. Was he taken by surprise because the defendant had successfully concealed himself? Yes, he was. That's all I have to prove and that's what all the evidence shows.

Judge: "Could it be said Davis was an unsuspecting victim when about four minutes before he had been shot at and thought he had been hit?"

Aaron Williams: Yes, or he would never have stopped in the middle of the road and checked Leonard Peters' body.

Tony Serra: "Miller says he got the M-16 and put it on full automatic for more firepower, he carried it at the ready, he told Davis to zig in order to avoid being shot, he indicated he was covering Davis. All of this shows an expectation of combat, and I would argue they were going out seeking Bear Lincoln to shoot him. That's why they were going down the road with the automatic weapon at the ready, because they knew that he was a witness to their unprovoked murder of Peters."

The judge commented that his central question involved the element of surprise attack on an unsuspecting victim. The matter was submitted for judgment, and on Wednesday, Judge Golden ruled for the defense -- the lying in wait charge was dropped.

Permission to broadcast the rest of the trial was granted to Mendocino County Public Broadcasting, Inc., which operates FM radio stations KZYX (90.7) and KZYZ (91.5), covering most of Mendocino County. Attorney Barry Vogel made the request for the station, and he also represented the Mendocino County Bar Association in support of the request. Vogel cited several factors which have limited public attendance at the trial, including travel distance, limited seating, and restricted entry and exits from the courtroom. He argued that broadcasting the trial would be in the public interest.

Prosecutor Aaron Williams had no objection and Serra said the defense team has constantly been on the record asserting Lincoln's right to an open and public trial. He said the closure of some hearings and the gag order are part of an overreaction to the O.J. case, which was truly a media circus.

Serra cited Aristotle's writings about the vice of deficiency, and argued that due to the tight rein the judge has kept on public access to information about the case, "we have been prevented from disseminating the themes which are invaluable to a democracy. We ask to allow a little light, a little crack, allowing just one radio station to broadcast."

Delivering a laugh line for perhaps the first time in the case, Judge Golden said he didn't go back quite as far as Aristotle, but that Serra's "poetic argument" had persuaded him. After making clear that the courtroom audio must be shared with other radio stations which may want it, the judge approved the broadcasts, which began on Wednesday, August 27, as the defense began presenting witnesses.