Bear Lincoln To Be Retried

The new trial is set for February 23, with the next court hearing scheduled for January 2nd. Representing Lincoln was Philip DeJong, who said afterward that Tony Serra would again lead the defense team. Serra was not in court today, but other Serra associates were present.

The manslaughter charges stem from the April 14, 1995 shooting death of deputy sheriff "Bob" Davis on the Round Valley Indian Reservation near Covelo. Lincoln was acquitted of first and second degree murder September 23 after a two month-long trial in which the death penalty was sought. He can be tried again because the jury hung on the lesser charges of voluntary manslaughter and involuntary manslaughter.

Many observers found it ironic that Massini should argue for a new gag order, considering that she was the only one found guilty of violating the old gag order. Visiting Judge Carlos Baker sentenced Massini to a $500 fine and five days jail time for contempt of court, but suspended the sentence provided she did not violate the order again before the trial was over. Apparently unknown to Baker was that the trial had ended some two weeks before his decision and sentencing. It was not clear whether the suspended sentence would extend to any new gag order in the case.

DeJong opposed a new gag order on First Amendment grounds, arguing that "the purpose of gag orders generally is to protect the rights of the defendant, not to allow the prosecution to prevent the defendant from commenting." He said the Lincoln case had received "massive publicity on an unprecedented scale already, a great big ocean of publicity, and it's too late to stick our fingers in the dike, here. This has nothing to do with a fair trial. There's an election campaign starting in March, and that's probably the real motivation."

Judge Golden said he was inclined to grant Massini's request for the gag order immediately, but would consider DeJong's objections and make his decision later in the afternoon. After a brief meeting in chambers with counsel to discuss scheduling, Golden set a trial date of February 23, 1998.

Massini was opposed to giving new potential jurors a written questionnaire, as was used for preliminary screening during the first trial. Manslaughter wasn't a death penalty offense, she argued, and the jury should be selected the same way juries are chosen for any other offense.

DeJong countered that a questionnaire was needed to help weed out jurors with racial bias against Native Americans, as well as to help determine how familiar they were with details of the case. He also argued that both sides had stipulated last spring to certain procedures for jury selection and that those agreements are still binding. Judge Golden said he will take up the matter at a hearing January 2.

Massini gave no details of her reasons for the decision to retry Lincoln despite the lopsided 10-2 jury vote favoring acquittal, and despite being told by jurors that they found no credible evidence that Lincoln had committed any crime whatsoever. She left the courthouse quickly after the hearing concluded, and was not available for further comment.

DeJong told KZYX that "People here have a really good sense of what's right and what's wrong. I'm real proud to live here and I'm real proud of the last jury we had. I think they did a wonderful job. I'm sure we can find twelve people next time who will put their minds and their hearts into doing the right thing."

Just outside the courtroom DeJong said he expected an acquittal if the case goes to trial, but he dropped a hint by saying that the defense would be filing some motions, and the retrial was not a certainty. He said he was surprised by today's decision and "frankly I haven't thought much beyond today."

Among those in the courtroom expecting Mendocino County to drop the manslaughter charges were three of the jurors who overwhelmingly acquitted Lincoln of murder charges. Just last month, representatives from the jurors met with Massini to present her with petitions containing 1,024 signatures opposing retrial. Jury foreperson Eileen Urich and juror Dorene Burdick, along with Round Valley Indians for Justice leader Cora Lee Simmons, spent over 90 minutes discussing the case and the urgent need to correct law enforcement problems in Round Valley. Massini told the three that she had already made her decision, but didn't reveal it.

After today's court session Urich said, "I think this is so stupid! It's just a waste of the taxpayers' money. If they don't have any more evidence than what they had to begin with, there's nothing to try. I am furious!"

Simmons was equally outraged: "I think it stinks, but that's okay, because we're going to win this time, and that's going to open the door to let those killers who actually killed Bob Davis and Leonard Peters answer for what they did, and that's the deputies. That's Miller, and I want to include (deputy Sgt.) Allman and (Sheriff) Tuso for vicarious liability." (Vicarious liability is the legal theory by which Lincoln was charged with murder for the death of his friend Peters on the theory that Lincoln provoked the fatal shooting by the deputies.) Simmons said she was surprised by Massini's decision, because she had said things during the meeting which seemed to signal she would not retry Lincoln.

"But we know that when a cop dies, the feeling in police departments is that somebody's got to pay. We know she's been under tremendous pressure from the sheriff's department, and I think that it's because of the pressure that she's come out with this decision. And that's not a wise decision because it's not based on a belief that she can win this case. I don't think she believes she can win this case, unless she feels that people are at enough of a disadvantage because of her friends at the [Santa Rosa] Press Democrat. Maybe she feels she can use that propaganda and people's inherent racism to get a jury that would convict him.

"We've seen that a conservative jury can see the truth. It was really amazing that Massini could hear the message loud and clear from the jurors -- not from the activists, not from the Round Valley community, not from the defense team -- but from a conservative, death penalty-qualified jury that she should not try to go ahead with this case... That's what I find most surprising."

Juror Dorene Burdick said she was offended by Massini's decision. "I just hoped that they had the perception to realize that there was no case here and not to retry it. I realize now it isn't really about the facts, it's about political ambitions in her case, I guess... if they really want to keep it going it's going to be ugly for them. It's a real unwise move, I think, even if all you care about is political office or ambition."

Asked about public perceptions about the case, Burdick said many people expressed surprise at the jury's acquittal of Lincoln on the murder charges, adding that those opinions likely reflect prejudicial stories that appeared in the Santa Rosa Press Democrat. Burdick had harsh words about the Mendocino County bureau chief for the New York Times-owned newspaper: "I finally figured out who Mike Geniella was in the courtroom today. He got up the minute it was over and went over and buddied up with Tuso in the corner, smiling and shaking hands, and stayed there, not talking to anyone else. People have obviously read the Press Democrat because they don't know the facts.

"They say things like, 'Okay, so they couldn't prove him guilty; that doesn't mean he didn't do it. I understand you guys had to find him not guilty, but I'm still not convinced that he didn't shoot the guy. He was up there and had a gun; why couldn't he have aimed at the guy and shot him?' And I said, okay, here's why. Here's what we know. Here's why that doesn't make sense."

When confronted with the question of who shot deputy Davis, Burdick answers, "Yeah, deputy Miller. You know, it's a tragedy, it was a mistake, it was an accident. [People then say,] 'Oh, okay. I guess I didn't know that much about it.' They really are not aware of the facts. It's self-defense, and there's no way they're going to prove anything else by the evidence we saw unless they get people on the jury who are biased... When you think about the position of everything (at the shooting scene), the lack of evidence, and the blood trail that there's no explanation for, there's nothing that points to his guilt. So fine, if they want to retry it it's just going to be a big fight. It'll probably be worse than the first trial."

After today's hearing Lincoln said since they are going to put him through another trial he hopes to use the opportunity to bring out more evidence to expose law enforcement wrongdoing. He's confident that he will be acquitted if given a fair trial, but he doubts an unbiased jury can be found in Mendocino County after all the publicity. "It's a big, sad story that needs to come to an end," he said. Lincoln was on his way to San Francisco where he was scheduled to speak at a major rally in support of Mumia Abu-Jamal on Saturday.

Today's hearing lasted nearly an hour, and was held in a small courtroom that barely held the 50 people attending. Among the spectators was Sheriff James Tuso, who had complained loud and long that the acquittal of Lincoln was "a tragic miscarriage of justice." He was smiling as the court session ended.