In an intense
period of courtroom activity, a judge has ordered a
newspaper editor jailed for refusing to turn over a letter to the editor
from Eugene "Bear" Lincoln, the Wailaki Indian man accused of killing a
Mendocino deputy sheriff on the Round Valley Indian Reservation last April.
Mendocino County Superior Court Judge James Luther also issued a gag order limiting attorney statements to the media. Lincoln's attorneys have filed for a change of venue in the high-profile death penalty case, claiming that Lincoln can't get a fair trial in Mendocino County.
Editor Defies Subpoena
Valley Advertiser editor Bruce Anderson appeared in court
last week under a prosecution subpoena demanding he produce the original of
a letter to the editor from Lincoln, and
the envelope that contained it. At a March 15 court hearing Anderson
appeared without the letter, but with an attorney who invoked the
California Reporter's Shield Law. Anderson declared in an editorial shortly
before that hearing, "I have the letter and I have the envelope. The DA is
not getting them." He vowed to go to jail rather than produce the letter.
When Anderson appeared in court March 28 without the letter and envelope, the judge found him in contempt of court and ordered him jailed until he produces the letter. Anderson has until April 22 to produce the letter, file an appeal or go to jail. Anderson's attorney, Carl Shapiro, said he will appeal the ruling.
Shapiro has cited the shield law's clear protection against newspersons being forced to produce information which has not been published. On that basis, the judge ruled Anderson did not have to produce the envelope.
Shapiro said case law provides a number of hurdles that must be met before a newsperson can be forced to produce information protected by the shield law. The first test is that the information must be so vital that the outcome of the case would be changed without it. The prosecution already has an earlier letter Lincoln wrote to his girlfriend that places him at the scene and contains many of the same allegations. A second test is that the information can be had in no other way. Shapiro pointed out that the letter was published, and that a copy can be admitted as evidence when the original can not be had after reasonable effort.
Shapiro's main argument was that the letter to the editor is the last bastion of the freedom of speech constitutionally guaranteed by the U.S. and California constitutions. He called it "as vital a part of free speech as exists in our culture today." If the editor is forced to produce the letter, other writers would lose confidence in the paper as a safe place to write their opinion, chilling free expression.
Deputy District Attorney Aaron Williams told Judge James Luther he wanted the letter examined by a handwriting expert to establish that it really was written by Lincoln so it can be used as evidence against him. Williams considers the letter incriminating, placing Lincoln at the scene of the shootings, and said it also could be used to attack Lincoln's credibility because of statements made in the letter.
Judge Luther ruled that the shield law does not protect the letter because it was published in the paper. Shapiro argued that only a copy of the letter had been published, not the handwriting, not necessarily in unedited form, and that the unpublished information must be protected unless there was a showing that it was vitally needed. However the judge failed to make a distinction between the words of the letter, which were published, and the aspects of it which were not published, and ruled that Anderson must obey the subpoena and produce the letter.
Interview with Anderson
In an interview
outside the courthouse, the outspoken editor freely commented on the letter- to- the- editor matter and the Lincoln murder case in general.
"I'm not looking forward to jail. It complicates my life enormously. I have three dependent people at home, including my 80 year old mother. But this is where you have to draw the line. If the government can just rummage through my files, people will cease communicating with my paper, and with papers, period. I think it's a very important issue, and I think the appeals court will recognize that."
"That letter is not relevant to this case. It's a statement from Bear Lincoln about those events, but they're very vague. It does not incriminate him in any way, and if the D.A. is depending on that letter to convict Bear Lincoln -- to kill him, really, which is what Mendocino County wants to do -- they really don't have a case. I think it's evidence of the weakness of their case."
Asked whether he thought Lincoln could get a fair trial in the county, Anderson responded: "I think there is a built in bias against a whole variety of people, and certainly against Native Americans. The paramilitary invasion of Round Valley (after the shootings) certainly established that. They would certainly not have tried that in [affluent Ukiah community of] Deerwood, but they felt free to do it in Covelo. There's bias plenty in this county."
45 percent believe Lincoln is "definitely" or "probably" guilty
was the reason Lincoln's court appointed attorney, Philip DeJong, filed a
change of venue motion stating that Lincoln is likely to get a fair and impartial trial in Mendocino County. A preliminary report from a jury expert found that pretrial publicity was "extremely high" and prejudicial, with 142 newspaper articles in just the first 90 days following the shootings on April 14, 1995.
The defense motion cited a recent survey showing that 92.7 percent of Mendocino County residents polled recognized the case, and that 45.4 percent of them believe Lincoln is "definitely" or "probably" guilty. The motion alleged bias and prejudice against Native Americans in Mendocino County, where they make up only 4 percent of the population, while 84 percent are White. A hearing on the venue motion will be on May 8. The judge ordered the supporting documents sealed to prevent their release to the media.
The defense has filed a motion alleging racial discrimination in the seeking of the death penalty, citing a disproportionate number of cases in the past two decades in which Mendocino County prosecutors have sought the death penalty against Native Americans accused of killing whites. A motion for discovery of evidence from the prosecution about charging practices will be heard May 8.
New gag order preventing lawyers from speaking to the press
Judge Luther also granted a prosecution request for a gag order limiting statements to the media by both prosecution and defense. The order prohibits making statements which a reasonable person would believe to be prejudicial.
The order is based on a new State Bar rule passed in reaction to the O. J. Simpson case, but is stricter. The Bar rule applies to all attorneys in California, and contains "safe harbor" provisions allowing an attorney to make statements to counter recent negative publicity from the other side, and allowing statements of what the claims and defenses are "without embellishment." The judge said he was leaving out the safe harbor provisions because he considered them too vague to allow enforcement.
The order requires the attorneys to come to the judge for permission before making a possibly prejudicial statement to the media. Attorneys are ordered to direct their staffs, including investigators, paralegals, secretaries, and police officers not to talk to the press about the case.
The justification for the order is to avoid prejudicing the pool of potential jurors, making it impossible to provide a fair trial in the county. In giving the background for his order the judge wrote: "Rather than an obvious need to protect their client from prejudicial pretrial publicity, it appears that defendant's attorneys are motivated by a desire to add to that publicity to win a change of venue...."
The judge noted that in early March, the defense had polled 468 county residents about the case. He said several of the questions contained highly prejudicial and inflammatory information about the defendant that would not be admissible in the guilt phase of the trial, and would possibly trigger a successful change of venue if they had been asked in a poll by the prosecution. Both of these questions had to do with Lincoln's past criminal record, in particular whether the person being polled had heard that Lincoln had been convicted of beating a two year old child to death (as was incorrectly reported in the Ukiah Daily Journal).
In fact, Lincoln pleaded guilty in the late '70s to beating the child (who did not die), and served a prison sentence for it. This was reported in the press soon after the shootings. Mendocino County Sheriff Jim Tuso went on America's Most Wanted, calling Lincoln "a convicted felon who should be considered armed and dangerous."
However, Lincoln family sources say that Lincoln did not beat the child, but took the rap for it to protect the child's mother, his girlfriend, because she was emotionally and mentally disturbed. Her children were later taken from her by the courts in another state for abusing them, the sources said.
Albion Monitor March 30, 1996 (http://www.monitor.net/monitor)
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