by Nicholas Wilson
In a bold and unprecedented legal move, J. Tony Serra, lead attorney for
Bear Lincoln, yesterday filed a motion seeking to dismiss the death
penalty in the murder case, making it a non-capital case. The case is in
the jury selection stage. The basis for the motion was the allegation that
the District Attorney's motives for seeking death were "specious and
motivated by ulterior considerations." Ruling out the death penalty as a
possibility would be a sanction, or punishment, against the D.A. for
seeking the death penalty in bad faith for political and tactical
advantage.
Serra's motion listed five ulterior motives he said the D.A. had in
seeking the death penalty against Lincoln, a Wailaki Indian accused of
killing a deputy sheriff:
1) Politics -- He accused Mendocino County District Attorney
Susan Massini of political grandstanding while running for
election as a judge.
2) Racism -- He stated "there is an undercurrent of anti-
Indian racism prevalent in the D.A.'s office."
3) Revenge -- Serra wrote that the D.A. was currying favor
in the law enforcement community by seeking revenge for the
killing of a law officer, despite the prosecution's implied
admission that the killings happened in the course of
several firefights, "and therefore this case should have
been charged as no greater than a manslaughter."
4) Eliminating pro-defense jurors -- In a death penalty case
the prosecution can eliminate potential jurors who would not
apply the death penalty, thereby getting rid of the jurors
potentially most favorable to the defense.
5) Hand picking the jury -- Increasing the number of juror
challenges by challenging potential jurors under the guise
of their position on the death penalty when the real
objection was something else.
Serra cited a particular example of what he called bad faith and ulterior
motivation which occurred last Thursday, May 29, during the questioning of
a prospective juror. Serra stated it became obvious that she would never
apply the death penalty. "If the district attorney was in good faith, and
did not have ulterior motives, it would have been incumbent upon him ...
to challenge (the) juror for cause," Serra wrote. "He did not. He did not
do so because in the questionnaire answered by (the juror candidate), she
had indicated ... that she believed that the defendant was probably
guilty." When the prosecutor, Deputy D.A. Aaron Williams, declined to
challenge her, Serra asked the judge to dismiss her for being unable to
follow the law regarding the death penalty. Williams opposed Serra's
challenge, accusing him of hidden motives, and there was a brief bit of
fireworks when Serra pointed at Williams and said he was the one with
ulterior motives. The judge tentatively granted the challenge.
In his motion, Serra charged that "the only inferable rationale for the
bringing of the request for death penalty is as above- outlined," and
cited case law supporting his position that, "for such duplicity in the
bringing of death penalty as a potential sentence, the sanction is
dismissal of the same." If the judge won't go as far as barring the death
penalty, Serra asked him to bar the prosecution from making any more jury
challenges based on death penalty issues.
In an interview with KZYX radio news today, Serra said there will be a
hearing on his motion this Friday, June 6. He said Judge John Golden
raised the possibility of holding a hearing in which D.A. Massini would be
subject to cross-examination about her rationale, policy and procedure for
charging the death penalty in this case. If the defense can show that the
prosecution did not follow a sound rationale, but was merely trying to
gain political or strategic advantage, then the sanction would be striking
the death penalty.
Serra said the defense felt it had caught the prosecution in a fatal slip
that will give them the opportunity, if the judge grants the hearing, to
expose them. "We're quite excited about it," he said. Serra said he knew
of no other case where the defense challenged the prosecution for
duplicity in asking for the death penalty for the purpose of gaining
political or strategic advantage.
Bear Lincoln, a Wailaki Indian from the Round Valley Indian Reservation,
is charged with first degree murder of a deputy sheriff in a shooting on
the reservation the night of April 14, 1995. He is also charged with
second degree murder in the death of his close friend Leonard "Acorn"
Peters, who was shot by deputies on the theory that Lincoln fired the
first shot, prompting fatal return fire by deputies.
In a letter to the editor Lincoln wrote: "the Mendocino County Sheriff's
Department laid in wait, and ambushed and murdered our brother Acorn. He
broke no laws, he had no warrants for his arrest, there was no roadblock,
no lights, no warning, only darkness, and then a blaze of gunfire." In
another letter, Lincoln wrote: "I would like to make the public aware of
the gross racism against Native Americans in the so-called justice system
in Mendocino County.... It is a matter of record that the majority of
death penalty cases in this county have been against Native Americans."
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FOR MORE INFORMATION:
For in-depth background on the case on the World Wide Web,
visit the Albion Monitor electronic newspaper at:
http://www.monitor.net/monitor/
be sure to use the archives search feature to search for
Bear Lincoln and Round Valley.
Another compilation of past articles and updates about
the case is on Planet Peace at:
http://www.planet-peace.org/round_valley/
For more information or to be added to a mailing list,
contact the Lincoln/Peters Defense Alliance at 707-468-1660,
or write c/o MEC, 106 W. Standley St., Ukiah CA 95482.
For e-mail updates, send a request to nwilson@mcn.org
Letters to Bear Lincoln can be sent to the following address:
Eugene A. "Bear" Lincoln
Mendocino County Jail
951 Low Gap Road
Ukiah, CA 95482