Albion Monitor /News
[Editor's note: This is a summary of opening statements made by defense attorney J. Tony Serra on July 29. Some direct quotes are used, but sections are frequently paraphrased. All assertions in this article were made by the defense and do not necessarily reflect the viewpoint of Nicholas Wilson or the Albion Monitor.]

"Was Davis Killed by 'Friendly Fire?'"

by Nicholas Wilson

on "Bear" Lincoln Case


UKIAH, CA -- Noted San Francisco defense attorney J. Tony Serra, who is representing Bear Lincoln without charge, told the jury that Lincoln would waive his right to remain silent and would testify. Because the defense case is given last, his testimony will come near the end of the trial.

Serra asked the jury to reserve judgment in the case, not to make up their minds until they hear his testimony. Lincoln's testimony will contradict Deputy Dennis Miller, the other main witness. It is up to the jury to judge the truthfulness and reliability of testimony and decide who is telling the truth.

It is important to understand that Serra describes two separate confrontations between Lincoln and Deputies Davis and Miller. On the first encounter, his close friend and cousin Leonard "Acorn" Peters was shot and killed by the deputies. Lincoln fired several shots in this exchange. About five minutes later, Lincoln returns to the scene to check on his friend. In this second incident, he fires a single bullet. It is during this time that Deputy Davis is killed.

Lincoln will testify, said Serra, "That on no occasion did he ever premeditate killing anyone or firing a weapon or lying in wait. He returned fire only after seeing his friend shot down in an ambush. He fired once and then fled the scene. He doesn't know if his bullet struck anyone. He didn't know who he was up against."

Bear Lincoln didn't confess to shooting or killing anyone
April 14, 1995 started as an ordinary day for Bear Lincoln, Serra said. He spent most of his day working with his five Appaloosa horses which he plans to use in an Indian youth program in Sinkyone Park, which has a portion reserved for Indian cultural and historical uses. Bear spent most of the day near his horses, and Acorn was helping him build a corral.

He saw his friend punched and his nose bloodied at the gas station. "He was the peacemaker, not the fight provoker. He did not have a gun. He had a normal day until what happened at the summit on Little Valley Road. None of the evidence the prosecutor referred to about what happened earlier related to his state of mind at the summit. He did learn that the Brittons were seeking revenge."

He and Acorn were walking, each with a gun, on Little Valley Road. It was bad weather, cold and wet. Acorn didn't have a hat, but Bear loaned him one, so they both wore hats. Peters was drunk (the autopsy would show his blood alcohol level between .26 and .28 percent), but Bear Lincoln had no alcohol that day, and was walking his drunk friend home to protect him from the Brittons.

"He heard nothing as they reached the summit, no voice and no radio from the police car. The window of the car nearest them may have been closed. He heard no one say 'police' or 'sheriff,' no order to drop the gun. He saw his close friend murdered before his eyes, gunned down in ambush."

Believing it was Brittons who shot, he moved forward, firing several shots randomly before jumping over the embankment. He ran -- in fear for his own life -- down an old trail.

After a few minutes it was silent. He turned back, unsure if his friend Acorn was dead or alive. As he came back onto the road some 70 feet downhill from the shooting scene, multiple shots came his way. He thought again Brittons were shooting at him. He fired once and was out of ammo. He ran again.

He ran a long way to his mother's house in fear and panic. "They're coming, they'll kill all you guys, you must get away." He did't tell them to leave by car; Lucille made that decision against Bear's advice.

He made his way through the woods, over the ridge to the reservation housing area, stopping at two houses. He spoke to Bunny Hoaglen, telling her they killed Acorn and tried to kill him too. He told his aunt that he is a witness to the police wrongfully killing his friend, and for that reason was afraid for his life.

At the three locations where he spoke to people that night, Bear Lincoln didn't confess to shooting or killing anyone.

Was it the single shot from Lincoln, or did Officer Miller, sometime after falling, shoot the fatal shot?"
Using large photos, Serra described the scene. From the deputies' position on the fire road, "...It would be difficult, if not impossible, for persons coming up the road to get a preview of their position."

Serra noted that from Bear's position, his view of the police car was blocked by the embankment uphill from the curving road. "Davis' body was here," said Serra pointing. He showed where several groupings of .223 caliber shells were found, then another point about 70 ft. down the road where a single .223 shell and hat were found. He showed where Lincoln fired several times after Peters was shot, shooting at unknown and unseen people as he tried to approach his fallen friend.

"He's behind this bank. He can't see anything. He doesn't know there's a car there. He doesn't know there's police officers there... He never sees who he's shooting at. He's shooting this way, that way -- he's just shooting. His friend is lying there."

Serra showed the location of the abandoned cabin down the trail, distant from the shooting scene. "He's not lying in wait for anyone. He's wondering if they are going to come [after him]. Four and a half minutes pass... and he comes up [onto the road] approximately where the [single .223] shell was found. He's walking, and he doesn't know if his friend is alive or dead, and he doesn't even know how many bullets he's got left, if he's got any. And then firing occurs.

"From where the hat was found there is no line of sight to where Davis was hit. Did the single bullet kill Officer Davis? My client doesn't know.

"[When the] deputies talk, they didn't say, 'Let's move our position because someone's flanking us.' They wanted to see if Acorn was alive or dead. They didn't want him to 'jam' them. So they made their way over to him. And then one or both of them saw a silhouette down here, and shots were fired and they were recorded on this tape. Were there three, four, or seven or eight? That's your decision. Their expert says you can't tell whether they are distant or close. Miller started firing, by his own admission. Remember, he had the M-16. He had it on fully automatic. He blasted away, and he was talking to Davis, so Davis was alive, and the recorder was on. Miller was shooting his automatic weapon down the road. He fell off the road, and the tape stopped at that point. Then, he said, when he got up, he saw that Davis had been shot. He got up firing. Was it the single shot from my client, or did Officer Miller, sometime after falling, shoot the fatal shot?"

Serra also pointed out that Miller only mentioned a single person in the hours following the shooting
Serra then turned to a transcript of Miller's pocket tape. "On tape Miller says, 'I think I got him, he went down.' The 'him' was Acorn Peters. The evidence shows Miller didn't get him, even though he fired seven shots. It has been established ballistically that it was Davis' bullet that killed Peters. Davis said 'Yeah, I saw it too.'

"There was an interval during which Davis crawled around the back of the patrol car from the passenger side to the driver's side. He thought he had been hit and used his flashlight to light up his midsection. Miller told him, 'Get your light off me.' After a few seconds Davis said, 'I'm going to move down the road. You cover me.' That's what's on the tape.

"They don't say, 'I hear someone behind us,' or 'Hey, someone's flanking us,' or 'we better move to the bushes because we're insecure by the vehicle.' Miller will say all of this, but he invented it, because it's not on the tape. And they left the cover of the vehicle, and this is (recorded) while they're walking. Davis: 'Cover me.' Miller: 'Got you covered -- leave him laying like he is.' Davis; 'I just want to make sure he isn't going to jam us.'

"So the evidence is they left their vehicle not because someone was circling, not because someone was lying in wait, not because someone was going behind them, but just because Davis wanted to check whether or not Acorn was dead. Miller says, 'Go zig.'

"They've already made a call for a backup. Then you hear the sound of shots. How many? Who shot? What does Miller say to Davis? He says, 'Get down.' What does that mean? It means that, just before Miller falls off the embankment shooting his M-16 automatic, Davis is still alive. Now, if [the shot heard was from Bear's single .223 shell found down the road], it never hit Davis. Why? Because Miller says to Davis, 'Get down' after the shot. It's not what you say to someone who just took a head shot."

Serra also pointed out that Miller only mentioned a single person in the hours following the shooting. "Miller said, 'I saw a subject standing there with a rifle in his hands...' Miller said Davis, 'lit the guy up with his flashlight...he didn't give us a chance. He just brought the rifle up to his shoulder and opened fire... and we returned fire and killed him.'" In these and other references, Serra emphasizes that Miller only mentions Acorn Peters.

"So then eight months later (in Grand Jury testimony) here comes Miller to give the lie," Serra roared intensely
Serra continued with the transcript of Miller's statement, noting that the deputy had said that after Acorn Peters was shot there was silence, and then Davis told Miller he heard movement in the brush, and that someone may be trying to flank them. Miller said, "And that's the first time I knew there was possibly two."

"It's quite clear," said Serra, "that Miller never even saw a second subject. He saw a silhouette [of Bear Lincoln] in the second part of the fight, down the road. In the first part, he saw only Acorn Peters."

Serra noted that investigators determined that Acorn Peters' gun was never fired, but Miller's statement after the events described plenty of gunplay by himself and the other deputy. Nine millimeter pistol shell casings were found on the ground where the car was parked. Miller said in his statement that he "... saw a muzzle flash and a round was fired. Davis fired one or two rounds." Serra commented that no shells were found [from the second encounter, except for the single .223 casing believed to be Lincoln's].

Miller's statement continued, "At the same time I cut loose with about a six-round burst of fully automatic...I stepped off the embankment, fell and hit my left side, and I rolled down the embankment, and came straight up and went back to the berm of the road. As I came back to the berm of the road I saw Davis on his back. At first he was against the wall, and then he fell over on his back."

"Now that was the official position," said Serra. "What happened? There was investigation that determined that the gun of Acorn Peters was never fired. Acorn never fired. He was just shot."

"So then eight months later (in Grand Jury testimony) here comes Miller to give the lie," Serra roared intensely, "to give the cover-up, to give the perjury!" Shouted Serra. Miller told the Grand Jury a new story, that he saw two suspects right from the beginning of the incident.

"Did Davis get wounded in the hand and chase Lincoln, dripping his own blood?"
Serra disputed that Davis was shot in the hand in the first exchange of gunfire, which is essential to the charge of attempted murder of Davis. He noted that no blood was ever found near the police vehicle. When Davis said to Miller that he thought he'd been hit, he was shining the flashlight on his midsection. When he checked Acorn's body he held his gun in his right hand and his flashlight in the left hand.

Later investigators found a blood drip path all the way down to the gate of Little Valley. It was not transferred blood, as might be found on shoes. "The blood was consistent with Davis' blood. Miller will say that when he shot at the silhouette, the silhouette fell down and groaned. They believe in the investigation that Bear Lincoln had been wounded."

But no wounds could be found on Lincoln after he surrendered, and no witnesses who saw him noticed injury.

"So where did the blood come from? What happened? Who shot Davis' hand? Was it Miller? If it was my client's single shot, and it hit his hand, then it couldn't have hit him in the head. He only had one bullet. There was only one shell down there. Was it Miller? Is Miller covering up something? Did Davis get wounded in the hand and chase Lincoln, dripping his own blood?"

Serra raised the issue of visibility. He said it was a gathering storm with scattered clouds and fog, and it later rained and snowed. He said Lincoln would testify it was dark and he couldn't see. When Davis checked Peters' body he used his flashlight, and that the deputies had their headlights on when they drove up the road.

There is also a possible third, unknown, person. Miller said someone was behind him, but Lincoln was on the other side of the road. Investigators found two shovels, a pickaxe, and a gum wrapper in the general vicinity of Lincoln's hat. There is no evidence connecting it to Lincoln.

Other mysteries remain. People living nearby heard "an armada of shots. They heard automatic weapons, they heard shotguns, and single shots -- it was like there was a war going on up there. There were multiple weapons and multiple shooting, and it lasted all night. The shells found there do not correlate to what those witnesses say they heard... if shells disappeared, you'd have cover-up, and if there's a cover-up what does it mean? There will be reports that trees and/or limbs of trees were removed. There were reports there was a shotgun in the car. It got removed by someone in some fashion. The earwitnesses say they heard shotgun fire. There will be witnesses reporting that Peters' body and his gun were moved. Was he moved for a reason? We don't know."

Serra cautioned the jury not to trust expected prosecution claims linking bullet fragments in the brain of Davis to ammo found at Bear's house. That doesn't mean they matched. It is an open issue whether Davis was killed by "friendly fire" when Miller tumbled over the berm, then came up firing again.

Why Lincoln hid from authorities
Bear Lincoln did not surrender that day, or for quite a while. It's not that he thought he killed anyone or that he was guilty of a crime. He believes strongly that everything he did was in self defense. It was because he thought if he surrendered he would be killed. He told others, "I want to surrender but if I do they'll kill me and anyone else with me. They want to quiet my voice." He's an American Indian, and knows the history of his people. He knows between 1850 and 1900 that 90 percent of Pacific northwest Indians were slaughtered. He knows that in Round Valley when they first set up the reservation, that 90 percent of the people there were slaughtered. He knows how the white man has broken every treaty and every promise. He knows of the white land grabs of all the best land and waters of the Round Valley Reservation land, and how they enslaved the Indians. He knows justice under the white man's system is for "just us." He remembers the wealth and beauty of the surrounding land laid waste by white business corporations. Defense expert witnesses will show how Bear's fear that he would be killed if he turned himself in is a reasonable, good faith belief. All that made him afraid, made him decide to wait 'til he had what he called "an Indian lawyer." He surrendered in Serra's office in San Francisco, not in Mendocino, about four months later.

Serra closed by asking the jury "to listen and hear, to open your eyes and see, and realize that everything that he did that night was in a bona fide, honest belief that he was in imminent peril. So he acted in self defense, and therefore he is not guilty."

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Albion Monitor August 5, 1997 (

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