Albion Monitor /News

Judge Quashes Murder Indictment of Bear Lincoln, New Charge Filed

by Nicholas Wilson

Grand Jury not told about important discrepancies in Miller's story

In a stunning decision, a judge threw out the entire Grand Jury murder indictment of Eugene "Bear" Lincoln November 30. Bear Lincoln is the Wailaki man from the Round Valley Indian Reservation accused of killing Deputy Sheriff Bob Davis last April. The prosecutor immediately filed a new murder charge, and a preliminary hearing has been set for December 14 in municipal court.

Mendocino County Superior Court Judge James Luther quashed the Grand Jury indictment because the prosecutor had failed to present evidence tending to exonerate Lincoln. The evidence might have cast doubt about the truthfulness of Deputy Sheriff Dennis Miller, the only surviving witness to the shooting besides Lincoln. The Grand Jury was not told about important discrepancies in Miller's story between what he told investigators hours after the shootings and what he testified months later to the Grand Jury.

Lincoln's family and supporters in the courtroom were visibly elated at the unexpected decision, and a few barely contained whoops were heard. After court had adjourned, Lincoln's lead lawyer, noted San Francisco attorney J. Tony Serra, had some enthusiastic comments for the media: "I feel that our team triumphed.... The judge indicated that the Grand Jury could have concluded that Miller perjured himself.... I think it's a landmark."

Serra said law enforcement was covering up what really happened

The prosecution lost on all three motions decided that day. A prosecution motion asked the court to sanction (punish) defense attorneys Serra and Philip DeJong for allegedly violating a court-imposed gag order in speaking to the press. The purpose of the gag order is to avoid prejudicing potential jurors in Mendocino County.

In media interviews, Serra had called the Grand Jury indictment immoral. He called it a second ambush, and said the first one was when the deputies ambushed the two Indians on the reservation last April. He also said law enforcement was covering up what really happened.

The judge ruled that those statements, though strong, were within the limits of what a defense attorney was allowed to say. They were allowable partly because the trial is still months in the future, diminishing any potential prejudice of the jury pool, and partly because under the order a defense attorney is allowed to make statements designed to counter prejudicial statements made earlier by law enforcement and the prosecution.

The prosecution also asked the judge to impose a stronger gag order forbidding attorneys in the case from making any comment whatsoever to the media. The judge also denied that motion, saying it would violate the defendant's and the attorneys' First Amendment free speech rights.

Defense attorney DeJong then asked the judge to set aside the grand jury indictment. He read from a transcript of a tape of Deputy Miller's statement to an investigator made a few hours after the shooting.

Miller had described how he and Deputy Davis were watching from a darkened patrol car backed off a rural road on a wooded hilltop. He said they saw a silhouette of "a person" walking up the road. He told how Davis challenged the person and ordered him to drop a rifle he was carrying, and how they both fired back at the man after he fired at them.

After the man had fallen mortally wounded to the ground, Miller said Davis warned him that he heard noises in the brush, and that there must be a second person nearby. Miller stated to the investigator "... and that's the first time I knew there were possibly two."

DeJong then compared that version to Miller's later Grand Jury testimony, when he claimed to see two men coming up the road. He testified that he thought he saw a muzzle flash from the first man's weapon, but that it could have been from the second man behind the first.

Between the time of Miller's first statement and his grand jury testimony, tests showed the rifle allegedly carried by Leonard Peters had not been fired, and gunpowder residue tests on Peter's body showed he had not fired a gun. The implication was that Miller may have changed his story to fit the later known facts.

Because the defense is not a participant in a Grand Jury hearing, the law requires the prosecutor to present the Grand Jury with all known relevant facts, including evidence which favors the defendant.

Prosecutor Aaron Williams said that he had asked Miller in front of the Grand Jury if he originally might have said that only one person was coming up the road. Miller had replied, "Yes, that's possible." But DeJong pointed out that the Grand Jury had not been told of the tape recording of Miller's first statement, or that it was available in writing. Without that knowledge, it was impossible for them to subpoena that evidence.

In explaining his decision to overturn the indictment, Judge Luther said that while he was not making a determination of the credibility of Miller's testimony, it was the Grand Jury's duty to do so in order to weigh the evidence against Bear Lincoln.

The judge cited language from case law stating that the prosecutor's duty in a Grand Jury proceeding is not simply to seek a conviction, but to present all evidence and to seek justice.

He ruled that the prosecution had failed in its duty to present evidence known to it, which significantly impaired the Grand Jury's duty to judge Miller's credibility in deciding whether there was sufficient evidence to indict Lincoln for murder.

At an upcoming December 12th hearing, the prosecution must present its case, subject to challenge and cross-examination by the defense, which also will be able to call witnesses and present evidence of innocence. Then the judge must decide whether there is probable cause to hold Lincoln for trial, or to dismiss the charges against him and set him free.

"They killed Leonard right in front of me. You better leave or they'll come and kill all of you"

Ten days earlier, at a November 20 bail hearing for Lincoln, Serra first sketched out the defense's case in court.

He argued that Lincoln and his friend Leonard Peters were ambushed, and Peters killed, by deputies who mistook Peters for his brother who was wanted for an earlier killing the same day. Serra argued that the Deputy Davis was then accidentally killed by his partner, Deputy Miller, citing Miller's taped statement that he slipped and fell while firing a multi-round burst from Davis' fully-automatic M-16 assault rifle. When Miller got to his feet, Davis had been hit in the head by a high velocity bullet such as an M-16 shoots. No bullet fragments were removed from Davis' body for forensic testing. The body was cremated and the ashes scattered at sea. Serra accused law enforcement of covering up the deputies' tragic mistakes and trying to frame Lincoln for both killings.

Serra put Lincoln's mother Lucille Lincoln on the witness stand. She told how she had gone to bed the evening of April 14 when the shootings occurred. She said her granddaughter came into her room and said she heard many shots being fired on the hilltop. She said they assumed they were being fired by vengeful members of the Britton family, because "Neil (Britton) had threatened me earlier." "We thought the Brittons were going to kill us."

Gene Britton had died earlier that day at the hands of Leonard Peters' brother Arylis Peters, and Arylis was at her house when Mrs. Lincoln arrived home earlier. She then drove Arylis to the home of one of his friends on the main reservation.

As she was getting dressed, she said, her granddaughter told her Bear had come into the house and said, "They killed Leonard right in front of me. You better leave or they'll come and kill all of you."

She and five other adult family members decided to take the four babies and leave her isolated home for the greater safety of the main part of the reservation.

As they were getting into the car, Mrs. Lincoln testified, Bear Lincoln approached the car and said to her, "Mom, don't go. They'll kill all you guys." She said that was the first time since dark that she had seen Bear. She said it was dark enough that she needed a flashlight to get to her car, and could not see Bear clearly.

The importance of this testimony was that it showed that Bear Lincoln thought he and Peters had been attacked by Brittons, not law officers, because there was no reason for him to think law officers would come kill the whole family. This cast doubt on whether the deputies identified themselves as sheriff's officers, as Deputy Miller said, and whether Lincoln had been close enough to see and recognize the patrol car in the darkness.

The prosecution case against Lincoln is that, by his own admission, he was at the scene. Investigators say they found at the scene spent .223 caliber shells of the type used in an M-16, but of a brand different from that issued by the Sheriff's Department. They say they found shells of the same caliber and brand at Bear Lincoln's house. They found a hat identified as Lincoln's down the road from the shooting scene. That, and Miller's testimony of what happened, is the total of the prosecution case against him. The prosecution has produced no murder weapon, and has not shown that Lincoln possessed a gun of any kind.

The judge denied bail due to the possibility of the death penalty in the case, assuming all the prosecution evidence, including the testimony of Miller, is accepted as true.

Albion Monitor December 3, 1995 (

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