Albion Monitor /News

Celebration as Lincoln Acquitted

by Nicholas Wilson

on "Bear" Lincoln Case

report from the courtroom

UKIAH, CA -- An all-white jury found Eugene "Bear" Lincoln NOT GUILTY of all murder and attempted murder charges Tuesday, September 23, and the Wailaki Indian man was freed on bail after unusual delays by jailers apparently intent on keeping Lincoln within their control for a final night.

Although unanimously acquitting Lincoln of the two murder and two attempted murder charges, the jury deadlocked 10-2 for acquittal on one count of manslaughter of Deputy Sheriff George "Bob" Davis and one count of attempted manslaughter of Deputy Dennis Miller. A new trial will likely be held on those charges as soon as a new jury can be chosen, probably in early November.

Besides the two manslaughter counts, Lincoln still faces four counts of illegal firearms possession and use by a convicted felon. These counts will be heard beginning Monday, September 29, in a second phase of the current trial before the same jurors.

Some jury members were visibly upset to learn they would not be released after the verdicts were read. They have served since they were initially summoned April 15, and have put in four days per week since July 29, when opening statements began the trial itself. Judge John J. Golden told the jury that they could expect to be through with the case after next week. The trial was "bifurcated" to avoid prejudicing the jurors by concealing from them the previous conviction until they reached a verdict on the murder charges.

Lincoln walked out of jail into the sunshine and fresh air, free for the first time since turning himself in voluntarily to authorities
Lincoln was released on $50,000 bail within three hours after the verdicts were read, with that amount based on prosecutor Aaron Williams' contention that he had a prior strike under the "Three Strikes" law for a 1978 conviction, doubling the usual bail and penalty for the remaining manslaughter by firearm charges. Judge John Golden said he would hear a motion for reduced bail next Monday afternoon after receiving a probation report. However, defense attorneys Phillip DeJong and J. Tony Serra immediately obtained a bail bond for the larger amount.

The prosecution apparently still intends to try to send Lincoln to prison for 25 years to life under the "Three Strikes" law. Although DeJong argued they can't do so, the prosecution will try to count Lincoln's 1978 conviction for child beating as a first strike, then to get convictions on felony weapons possession and manslaughter as second and third strikes.

When Serra asked the judge if his total gag order was still in effect, Golden replied "It certainly is!" The gag order bars everyone involved in the trial, including Lincoln himself, from making any comment to the public or the media about the case. However, there have been a stream of leaks from the prosecution and sheriff's department to the Santa Rosa Press Democrat, and a defense motion to hold District Attorney Susan Massini in contempt of court was heard last Friday before visiting judge Carlos Baker. No word has been received of any verdict in that action.

Lincoln was greeted by dozens of cheering supporters, family members and reporters as he walked out of jail into the sunshine and fresh air, free for the first time since turning himself in voluntarily to authorities August 16, 1995 at Serra's San Francisco law office. His mother, Lucille Lincoln, tearfully embraced her son and presented him with a beaded necklace with a flint arrowhead pendant. After hugging and shaking hands with dozens of well-wishers, Lincoln went with family members and friends to tribal land for a reunion celebration.

In a brief interview he said he had not been treated too badly in jail, joking that "they didn't beat me every day." Lincoln said he maintained his spirits while in jail by praying and fasting, and that he got a lot of letters from supporters. Also, he said, he knew he had "a good strong case and a great defense team." He expected to be accquitted because he was not guilty; that's why he surrendered to authorities. He expressed thanks for the dedication of supporters who took time out of their lives and kept the courtroom filled to capacity every day of the trial, and who held a prayer vigil outside the courthouse during jury deliberations. Lincoln said, "I can't imagine going through this experience by myself. That would have been really tough; a lot tougher than what it has been." Lincoln said the most exciting part of the trial for him was the six-hour closing argument by Serra. He said he had no immediate plans, except to live life hour by hour, and to spend time with his friends and family. And his Appaloosa horses, "They're part of my family."

Bitter Law Enforcement Reaction
Lincoln's jailers delayed his release as long as possible, sending the attorneys back to the court clerk twice over a two hour period for what the jailers claimed were the necessary documents for his release. The court clerk said she had never before had to issue a certified copy of the release order, nor do any more than make a phone call to the jail to free a prisoner on bail. The jailers seemed to be trying to delay Lincoln's release long enough so the court offices would be closed for the day, making it impossible to obtain the papers they demanded, and enabling the sheriff's department to keep Lincoln in jail another night. Given the mood of some law enforcement officers, that might have been hazardous to his health, if not his life.

Supporters have expressed fears of a revenge attack on Lincoln by rogue law enforcement officers or their allies. As Lincoln walked across the jail parking lot with family members and attorney DeJong, he was subjected to what this reporter and other witnesses interpreted as a threat by sheriff's detective Al Tripp.

Tripp got out of his personal parked car as Lincoln passed, pointed straight at Lincoln with outstretched arm and finger from two or three yards away, and said, "Eugene, you lied with a forked tongue; you know what I mean." It was not the words themselves so much as the manner, gesture and body language that were threatening. The man and his license plate number were photographed before he drove away, and several people who witnessed the incident gave brief videorecorded statements about what they had seen and heard.

Mary Callahan of the Press Democrat interviewed Tripp afterward and quoted him as saying of the verdict, with tears in his eyes, "This is wrong, this is wrong. This guy should not walk." Tripp reportedly told Callahan he could not resist confronting Lincoln, whom he still considered guilty of killing his longtime friend, Bob Davis.

"A veteran law enforcement officer who did not want to be named" reportedly told The Press Democrat's Mike Geniella that law enforcement people felt "devastated" by the not guilty verdicts. "How do you expect any of them to feel?" he asked. "Two men were killed that night, including a very good deputy, and no one is being held accountable."

Reacting to those words, Lincoln supporter Betty Ball of Ukiah said, "They're blaming the wrong person. They just can't accept that it was probably Dennis Miller's bullet that killed Davis. They want an Indian scapegoat, just like the Leonard Peltier case, where he's been in prison over 20 years for the killings at Wounded Knee that they know he didn't do, but two cops died and somebody's got to fry."

Details of the Courtroom Scene
The courtroom had been filled beyond normal capacity by adding folding chairs. There were more than the usual dozen reporters present due to the two hour advance notice that a verdict had been reached. For the first time since the trial began, Judge Golden allowed a TV camera and still photographer (from Santa Rosa mainstream media outlets KFTY-TV and the Press Democrat) to operate in the courtroom. There was no radio broadcast of the verdicts, but only because the local public station's management decided not to carry it. Word of the verdict had spread quickly, and as was the case throughout most of the seven-and-a-half-week trial, the spectator seats were filled by lottery, with many more turned away than admitted.

The judge sternly warned the packed spectators that, "No emotional display at all will be tolerated in the courtroom." He said people could be emotional outside if they wanted, but bailiffs were ordered to eject anyone visibly reacting inside the courtroom. As a result, there was pin-drop silence while the verdicts were read, but there was a sustained whooping and cheering in the hallway outside immediately afterwards.

Serra bounded down the front steps of the courthouse with a jubilant grin on his face, pumping his raised thumb in the air as the crowd below cheered and applauded him and other defense team members, and passing cars honked their approval. Asked how he felt, Serra replied, "Somewhere between gagged and ecstatic!"

Apparently anticipating a guilty verdict, the sheriff's department was prepared for trouble from Lincoln supporters. Riot gear equipped SWAT team members entered the sheriff's quarters on the same floor where the Lincoln trial was heard. Before the court session began, deputies were taping off parking spaces across a side street from the courthouse. A canine unit arrived at the rear of the building, and two black clad officers with long riot sticks on their belts entered the back door. Plainclothes officers tried not to look like cops on the sidewalks and in the storefronts bordering the courthouse. As there had been through the pretrial hearings and the trial itself, there was the extra high security checkpoint outside the courtroom door, complete with a large airport-style metal detector and three armed deputies.

Immediately after Judge Golden accepted the verdicts and excused the jury for the day, Sheriff James Tuso jumped up and escorted members of the Davis family out of the courtroom on the heels of the jury -- this despite the judge's order for all spectators to remain seated. Seeing that his order was being violated the judge ordered the bailiff to go out and make sure there was no contact between the jury and the Tuso/Davis party. The sheriff led the Davis family down a "secure" stairway to a guarded north exit. Outside, a squad of deputies stopped traffic as Tuso and the Davis family members crossed the street in the middle of the block and departed in vehicles parked in the cordoned-off parking spaces.

Details of the Verdicts
The court session began at 1:45 with the judge calling for the verdict forms from the woman who was elected foreperson of the eight-woman, four-man jury. The clerk then read each of six separate verdicts. In sequence the verdicts were:
  • not guilty of first degree murder of deputy Davis under Count 1
  • not guilty of second degree murder of Davis under Count 1
  • not guilty of any offense charged by Count 2 (second degree murder of Peters)
  • not guilty of any offense charged by Count 3 (attempted murder of Davis)
  • not guilty of attempted first degree murder of deputy Miller under Count 4
  • not guilty of attempted second degree murder of deputy Miller under Count 4
For each of these verdicts, each member of the jury was polled and required to verbally confirm his or her vote.

The foreperson said the jury was deadlocked on the lesser included charges in Count 1 (voluntary or involuntary manslaughter of deputy Davis), and also was deadlocked on the lesser included charges in Count 4 (attempted voluntary or involuntary manslaughter of deputy Miller). The judge asked if there had been at least three votes without any change for each of the deadlocked items, and that was the case. The foreperson said they had taken five votes altogether on voluntary manslaughter and three on involuntary. The numerical division remained constant on all five votes, and they were taken over two to three days.

By inference, this meant the jury voted not guilty on the murder charges on the first or second day of deliberations, since there were only three and a quarter days of deliberation.

Before accepting the deadlock, Judge Golden asked the jury, "Can you think of anything I might do to aid you in reaching a verdict?" "No," was the answer. "Would it be useful to read back any of the testimony or explain any of the instructions?" No again. When polled, no member of the jury thought it would be useful to continue deliberating. Clearly, they were tired of the whole ordeal and thought they were finished.

The judge then found the jury was hung on the lesser included offenses in Counts 1 and 4, since there was not a reasonable probability that continued deliberation would produce a verdict.

After breaking the bad news to the jurors that the second phase of the bifurcated trial would begin next Monday, the judge reminded them that they are still jurors and are not permitted to discuss any aspect of the case about any count with anyone, or to expose themselves to any media accounts. He especially cautioned them that they may be approached by media reporters seeking to interview them, and he admonished them that such was stictly forbidden. The jury was then excused for the rest of the week.

Judge Golden turned to setting a schedule for retrying the hung charges with a new jury. Serra said he has other cases scheduled already, but Golden told him he had just found himself involved in a continuing trial (which takes precedence over conflicting trials not yet begun). Williams wanted to go ahead as soon as possible, but Serra requested a mid-November date. The judge said he can justify a delay of about three weeks, that being the time it takes to get a jury panel together and into the courtroom for jury selection -- maybe Oct. 27. Serra asked for one week beyond that, and Judge Golden said they could discuss it further Monday morning.

In arguing for Lincoln's release on bail, Serra said there has now been a drastic change in the level of the charges. He reminded the judge that Lincoln had surrendered voluntarily for the express purpose of being tried on capital charges. He is practically a lifelong resident of this area and the greatest number of his relatives live here.

"He is absolutely not a flight risk," said Serra. He argued that the vote was 10-2 favoring acquittal on the manslaughter charges. "But for two votes we might have had acquittal on all counts. My client would accept reasonable restrictions, such as restriction to Little Valley, daily phone contacts, or monitoring by tribal elders or others. We believe he is entitled to bail. He's not a danger to the public or a flight risk. So we ask that he not suffer the disadvantage of coming into court in custody."

Prosecutor Aaron Williams said the bail schedule is about $20,000 for the voluntary manslaughter charge, plus $10,000 for use of a gun. He then argued that this was a second strike offense, which doubles the bail and sentence, so it should be at least $50,000. Defense attorney Phil DeJong argued that for legal reasons the 1978 conviction did not count as a first strike.

Judge Golden said he didn't have good factual information upon which to decide the proper bail amount, so he set bail at the worst-case amount of $50,000, but set a bail reduction hearing for Monday afternoon when he would have a probation officer's report.

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Albion Monitor September 25, 1997 (

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