Court refuses to believe letter is authentic
After spending Memorial Day
weekend in solitary confinement, maverick Mendocino editor Bruce Anderson decided to surrender the original letter to the editor from Bear Lincoln. But after a 90-minute court hearing Wednesday, with sworn testimony from four witnesses, the judge refused to accept the typed letter as the genuine original and ruled that Anderson would remain in jail indefinitely, until he produces the true original.
Anderson Valley Advertiser (AVA) reporter Mark Heimann turned the letter over today to Anderson's attorney, David Nelson, and testified that he was the one who first opened the letter at the AVA office. Heimann said he read it, then took it to Anderson with a recommendation to print it. After a quick scan, Anderson agreed, and Heimann took the letter to the typesetter.
Heimann said he had kept the letter in his possession ever since, and he positively identified the letter before the court as the original which he had received. The letter was on his desk when he arrived at the AVA office one day in mid January, Heimann said, and he had no way of knowing how it got there.
Heimann still has the envelope the letter was in, but Judge Luther earlier ruled that, because the envelope had not been published, it was protected under the California Press Shield law. The prosecutor's attempts to question Heimann about the source of the letter were blocked by objections that this was protected information.
Anderson said he had no hope of being upheld by three generations of Republican judges
was entirely typewritten, including the signature. The prosecutor's investigator said after a brief inspection of the letter that it appeared to have been printed on a computer. Because of that, there is no way for the D.A. to prove that the letter really came from Lincoln, preventing him from using it as evidence at trial. Assistant D.A. Aaron Williams said at an earlier hearing that he wanted to have the handwriting of the letter analyzed in order to prove it came from Lincoln.
The prosecutor called his investigator Scott Warnock to the stand. Warnock testified that it was his job to read, copy and file all letters in and out of the jail to Lincoln. He said that, out of a total of 30 letters written by Lincoln since December, none were typed; all were hand written. Warnock then read aloud in its entirety a January 2 letter from Lincoln to his girlfriend in which he wrote that he was irritated that his attorney, Philip DeJong, had not mailed his letter to the AVA. The AVA published the disputed letter from Lincoln in its January 17 edition.
Williams then tried to call DeJong as a witness, but the judge sustained DeJong's objection that it would violate the attorney-client privilege. Williams said Lincoln's letter to his girlfriend circumstantially showed that the letter was given to DeJong by Lincoln, and DeJong forwarded it to the AVA. DeJong had no comment for the press. If DeJong confirmed that the typed letter came from Lincoln, the prosecutor could then try to use it against him, or try to force DeJong to produce the handwritten original. In addition, it would be a serious violation of jail rules for an attorney to take out a letter from an inmate to a third party, and DeJong could possibly be prosecuted for it.
When Williams put Anderson on the witness stand and asked if he could identify the letter, Anderson said he had no recollection of seeing the letter before it was typeset for the paper. But, he said, the letter in front of the court was the complete letter as published, except that the date and a postscript had not been printed in the paper.
When pressed by Williams whether the letter was exactly as published in his paper, Anderson, taking him precisely and literally, said no, it was obviously not, since it was published on newsprint in his paper, and the letter in front of him was on typing paper. Williams later, in his closing argument, seemed to twist Anderson's words, claiming Anderson had stated that the letter before the court was definitely not the letter that was published.
Williams asked Anderson why, in light of his strongly stated vows never to turn over the letter, he had changed his mind so quickly. Anderson said he had decided that he had no hope of being upheld by three generations of Republican judges and he knew the letter couldn't be used to hurt Lincoln's case. He said he had learned shortly after being jailed that the state Supreme Court had denied his appeal.
Anderson said the reason he had gone to jail was to make the point that he would not allow the government to rummage in his newspaper's files. To do otherwise, he said, would undermine the public's confidence that he would protect his sources, which would have the effect of chilling freedoms of speech and the press. Anderson said he had made his point, and there was no reason to remain in jail in solitary confinement.
"This is very clearly punishment -- revenge, if you will"
In his closing
argument, Williams attacked the credibility of both Anderson and Heimann. He suggested that they had hatched a scheme to accomplish their two goals of getting Anderson out of jail and keeping incriminatory evidence against Lincoln out of the prosecutor's hands. He argued that the typed letter was not the original received by the AVA, and said it was up to Anderson to prove it was.
Nelson, in his closing argument, said there was adequate evidence to show that the letter produced in court was the original as received by the AVA. He pointed out that the D.A.'s own evidence, Lincoln's letter to his girlfriend, showed it was likely that the AVA letter had been routed through his attorney, and it was plausible to think that DeJong had the letter typed before sending it on to the AVA.
The judge agreed with the prosecution, saying he believed it was highly unlikely that the letter was the original, and agreed the burden of proof was on Anderson. He refused to release Anderson from jail, and said he will wait for Anderson to make the next move.
Anderson remains in solitary confinement in jail where he earlier complained of headaches from caffeine withdrawal. Anderson also told associates that he had been deprived of reading material and was allowed nothing to write with. Inmates are allowed to receive books and publications only direct from the publisher.
In a statement broadcast by KMUD radio, Garberville, Mark Heimann said "They want to keep Bruce Anderson in jail. They want to punish Bruce; they want to punish me for our coverage of the Lincoln trial and some of the other outrageous acts that have happened in this county. And this is very clearly punishment -- revenge, if you will. ( Heimann was arrested and jailed when he arrived at the courthouse to cover Lincoln's arraignment last August.) Judge Luther (earlier) said Bruce held the keys to his own jail cell; if he would turn over this letter he would be let loose. Obviously, Luther didn't mean that.
"What Luther ruled today was in essence that I was lying, that I committed perjury on the stand, and that's simply not true," Heimann said. "I gave them the original letter as I received it. I don't know what else I can do. Of course, I could prove my point by providing the original envelope that it came in, which I have. ... But that goes to the source, and the source is clearly protected under the California Shield Act."
Also on KMUD, AVA reporter and typesetter Mark Scaramella said, "The AVA is stumped at the moment, because that was the letter, and there doesn't appear to be any obvious step to take. We're contacting some civil rights organizations and other legal channels to see what can be done." Asked if a date was set for further action he replied, "It's just open ended. As far as I can tell no dates were set. As far as the D.A. is concerned, and apparently the judge agrees, we've got the real letter and we're not turning it over. And that unfortunately is not true; we do not have any 'real' letter. We turned over 'the letter' and they're not accepting it, so here we are."
Asked how Anderson was doing when he talked with Scaramella from jail after court, he replied, "He seemed like he was resigned to being in jail for a long time."
(Gordon Johnson of KZYX and Estelle Fennell of KMUD contributed to this story.)
Albion Monitor May 29, 1996 (http://www.monitor.net/monitor)
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