The Jury Has The Case!
(posted Tuesday, April 26, 2005 at 5:40 PM) (see 4/27 update below)
The jury of six women and two men now has the
case in their hands. They have chosen to begin deliberations Wednesday morning
at 8 AM and continue until 12:30 PM.
After hearing testimony from defense expert
witness on police practices Don Cameron Tuesday morning, the jury heard
Sheriff Gary Philp answer a few more questions from defense attorneys. Then
the defense rested their case.
Judge Illston read jury instructions, including
the legal factors they must consider in deciding whether the actions of
Humboldt County Sheriff's Office and the City of Eureka Police Department used
unconstitutional excessive force when they applied pepper spray to the eyes of
locked down forest protesters in three incidents in 1997.
The plaintiffs' closing argument was expertly
delivered by lead counsel Dennis Cunningham. The defense closing arguments
were given first by William Bragg and then by Nancy Delaney. Plaintiffs'
counsel Tony Serra had the final word, delivering a passionate rebuttal to the
The jury was sent to the jury room with
instructions to choose a foreperson and then to set their schedule, which they
have now done. They are allowed to deliberate on Friday if they choose, even
though it is not a normal trial court day and the judge will be in the
courtroom hearing motions in other cases.
It is not unusual for a jury to send questions
to the judge, and in that event she must consult with both sides before
answering. During deliberations, attorneys for both sides will be standing by
within 15 minutes call to the courtroom in case of questions or announcement
of a verdict.
The activist-plaintiffs feel strong in their presentation of
the evidence and have faith in the eight individuals on the jury to thoroughly
discuss the issues, and see through the rationalizations and excuses of the
Stay tuned for any developments as soon as we
Jury Sends Note, Sets Schedule (posted
4/27/05, revised at 6:22 PM)
The jury began deliberations Wednesday morning at 8:00 AM. Within
the first 20 minutes they sent two notes, one setting their schedule for
deliberations and one
requesting three things: a cork board to pin up Polaroid photos of each
witness taken by the court clerk, a legal dictionary, and a
copy of the 4th Amendment to the U.S. Constitution.
As court protocol requires, Judge Illston called both sides
into the courtroom and asked how they felt about each item requested by the
jury. All agreed that a pin-up board was okay. All agreed that a legal
dictionary can't be provided -- they can send a note if they need a
As for the 4th Amendment, Dennis Cunningham said the
plaintiffs are willing to provide it. Nancy Delaney said the defendants object to
providing the 4th Amendment, saying all they need to know about it
is contained in the jury instructions. The judge said she agreed. Rather than
call the jury into the courtroom, it was agreed that she would go to the jury
room to tell them her decisions.
In the Judi Bari vs. FBI civil rights trial in 2002, that jury
also requested copies of the 1st and 4th Amendments. Attorneys for the FBI and
Oakland Police opposed that request too.
The jury has set the following deliberation schedule:
Wednesday from 8 AM to 12:30 PM; Thursday from 8:30 AM to 5:00 PM; and, if
needed, Friday from 8:30 AM to a time to be decided.
When the request for a cork board was discussed, someone joked
that maybe cork wasn't environmentally correct. Dennis Cunningham quipped that maybe it
should be made of plastic or some other synthetic material.. Delaney then quipped that
she preferred a slab of redwood.
The jury went home at 12:30 PM today with no further word.
Stay tuned for further updates.
Trial nears conclusion, will go to jury
Tuesday April 26 (posted Monday, April 25, 2005)
The plaintiffs rested their case in
chief on Thursday, April 21. The defense case began Monday, April 25, with six
witnesses testifying, and it is
expected to be concluded by 10 AM Tuesday. Only two defense witnesses remain to
be heard, police practices expert Don Cameron, and a brief recall to the witness
stand of Sheriff Gary Philp. Then the judge will
instruct the jury in the law as it applies to this case. The jury will hear
closing arguments of one hour from each side, after which they will be sent to
the jury room to begin deliberations.
The jury will choose a foreperson, and then set their own
schedule for deliberations. They could choose to begin deliberating immediately,
or to wait to start Wednesday morning. Most juries are eager to begin
deliberations as soon as possible in the hope of being done with the case
quickly and returning to their normal lives. It is fairly likely that they could
decide to start immediately. It is possible they will decide to stay late,
conceivably reaching a verdict late Tuesday afternoon. Most likely a verdict
would come sometime Wednesday, and there is a small chance that deliberations
could go on past Wednesday.
Lungren subpoena withdrawn (posted
Monday, April 25, 2005)
Dan Lungren fought to quash the subpoena served on him last week
by plaintiffs, who wanted him to testify about his 1997 letter as then-Attorney
General of California, which said the use of pepper spray applied by Q-tips to
passive protesters and spraying it from inches away from their eyes was not
within the then-accepted standard of police practices in the state.
The office of the current Attorney General of
California, Bill Lockyer, filed a motion to quash the subpoena on various
technical legal grounds, saying in essence that now-Congressman Lungren is too high a
government mucky-muck to be pestered and dragged into court to testify about
this trifling matter.
A hearing on the motion to quash,
originally set for Friday, April 22, was rescheduled for Monday April 25, 2005, at 1:30 PM,
immediately following the regular trial session. However, plaintiffs' lead
counsel Dennis Cunningham told Judge Illston Monday morning that plaintiffs were
withdrawing the subpoena, and the hearing was not held.
Defense counsel Nancy Delaney immediately moved for a mistrial,
claiming that the Lungren subpoena was nothing but a publicity stunt, and that
it was intended to influence the jury. Judge Illston said the jury is admonished
daily to shield themselves from the media or any discussion about the case with
anyone at all, including each other and their own families. The judge denied the
The reason Lungren was subpoenaed was that the judge would not
allow the letter to be admitted as evidence, sustaining an objection by Delaney
that it would be hearsay.
You may find the Lungren letter issue of interest, so links are provided below.
Letter to Supporters - March 20, 2005
to the trial!
You're ALL invited to the Pepper Spray Trial!
Come witness the trial that will decide the fate of
protest and chemical weapons in these times!
We need a presence in the courtroom to show support!
San Francisco Federal Building, Judge Susan Ilston's
450 Golden Gate Ave. at Polk (Civic Center BART stop)
Must have photo ID to get in
Monday - Thursday 8:30 a.m. to 1:30 p.m. with two 15
Call 510-835-6303 for more info
We are the Pepper Spray 8, forest activists and plaintiffs
in the pivotal civil rights case Headwaters Forest Defense vs. County of
Humboldt, which interweaves the fate of our imperiled forests with the right
to peacefully protest free from assault by pepper spray.
In 1997, while engaged in nonviolent sit-ins to protect old
growth redwoods, Humboldt County and Eureka police applied pepper spray
directly to our eyes with Q-tips. Shocking images from police videotapes
caused international outrage. Amnesty International called the police behavior
cruel, inhuman and degrading treatment..."tantamount to torture."
We've successfully fought numerous legal obstacles, winning
appeals and making precedent, and going to trial twice, but the journey for
justice is not quite over. We send this letter now at a critical juncture: We
begin our new jury trial this April 12, 2005, and you're ALL invited!
There are two simple ways you can stand with us to protect
the freedom of dissent in this country:
DONATE what you can to keep our case
alive-every little bit helps, and donations will continue to be
Click here for the Contributions Page.
ATTEND TRIAL in San Francisco, CA starting
April 12th and continuing about two weeks. We need to publicly show our
support and keep a presence in the courtroom for this important jury
Last September, our case went to jury trial in San Francisco
for the second time (represented by the same award-winning legal team that won
a stunning jury verdict two years ago for Earth First! activists Judi Bari and
Darryl Cherney against the FBI). After three weeks of trial testimony, the
jury's deliberations came to a quick halt when just two of the jurors
adamantly believed that police should be allowed to inflict severe pain on
peaceful protesters. Although we had the majority, we need a unanimous verdict
to protect the tradition of peaceful protest.
Let's make sure "the third time's the charm,"
because this case is more important than ever! We must not let the police open
the door to using pain as coercion against nonviolent people, protecting the
politically powerful Pacific Lumber/Maxxam Corporation in their devastation of
Civil rights in this country today are an endangered species
just like the ancient redwoods we aim to protect. The fact that our case is a
contentious one is the very reason we need to follow through with it and win
the retrial, in defense of everyone's rights. Because as Frederick Douglas
said, "Power concedes nothing without a demand."
THE PEPPER SPRAY 8: Spring Lundberg, Terri Compost, Mike
McCurdy, Sam Neuwirth, Maya Portugal, Lisa Sanderson-Fox, Jennifer Banka
Schneider, and Noel Tendick.
Letter of Support from a Juror in the September 2005
Dear Pepper Spray 8,
The trial ended today as a hung jury. We deadlocked (6 -2). I am greatly
troubled and disappointed about the outcome...creat[ing] an underlying current
that it's ok to use excessive force on peaceful protestors. I am appalled and
dismayed that this happened. I do hope there is a third trial and the
(One of the jurors)
Report on Mar. 3, 2005, Motions
A hearing took place March 3 on our (plaintiffs') motion to reconsider
the court's order ruling out punitive damages and our motion for a more
in-depth jury selection process.
Judge Susan Illston didn't rule on the motions on the hearing day, but
she said she's inclined to deny them but to allow expanded time questioning
The judge rejected a suggestion by the defense to show one of the police
torture videos to the prospective jury panel during juror selection. That
would have given the defense a chance to spot and reject from the jury all
those who showed any emotional or human reaction to the horrific police
actions shown in the video.
The judge accepted our lawyer Tony Serra's suggestion to have both sides
present abbreviated 15 minute statements to the jury pool to let them know
what the case is about, but no photos, videos or other evidence would be
allowed. There would still be full opening statements presented after the
jury is chosen and the trial begins. Jury selection would probably take up
all of the first day.
here for a more detailed report on the hearing and links to the motions
Report on Nov. 30, 2004, Motions Hearing
12/1/04, revised title and text on 4/7/05)
The judge set April 11, 2005 as the date when a
new jury trial in our federal civil rights lawsuit will begin. The
announcement came at a hearing Nov. 30, 2004, when Judge
Susan Illston also granted our motion to reopen discovery and allow us to
use expert witnesses, something we were not allowed to do in the first trial
in 1998 or the second
trial in September 2004.
Judge Illston also granted a defense motion to
disallow punitive damages against the two individual defendants remaining in
the case, former sheriff Dennis Lewis and current sheriff, then chief
deputy, Gary Philp. Our attorneys have petitioned the judge to reconsider that
ruling (see the Plaintiffs' Motion For Revision of Order linked from Legal
Documents Index Page). They also filed a Motion for Expanded Voir Dire
(questioning of prospective jurors) to weed out those with strong biases
that prevent them from giving us a fair trial.
Jury Deadlocks 6-2 for Plaintiffs!
Wednesday 9/22/04 6:00 p.m.
The jury deadlocked 6-2 in our favor. Jurors spoke with
plaintiffs and attorneys in the hallway afterward, telling us that the two who
opposed us simply favored the police view in all respects. The two said they
felt pepper spray wasn't so bad, and they believed the defense argument that
the grinder alternative was more dangerous. One of the two told plaintiff
Terri Slanetz that if you don't want to be pepper sprayed just don't lock
down. Apparently in their opinion, the police can do no wrong, so there is no
such thing as excessive force. This is the second trial in which a hung jury
resulted from pro-police bias that wasn't exposed during jury selection.
Spring Lundberg told reporters: "This case is
about defending nonviolent civil disobedience as part of our American
heritage. I don't want to go through another trial, but we will, and we'll do
it better and make sure that nonviolent people are not assaulted with chemical
weapons. People don't want to question the badge and uniform at this time in
our history, but that's exactly what needs to be done to preserve our right to
After closing arguments Tuesday morning, the case went to
the jury about 12:30 p.m. The jury deliberated until after 5 p.m., when they
sent a note to the judge saying there was "adamant opposition"
within the jury. Judge Illston
sent the jurors home for the night with instructions to sleep on it. The jury resumed deliberations this morning about 9 a.m.
Just before noon they sent another note asking: "Can you change the decision from 100% to majority
decision?" There was a court session at 1:30 p.m. at which our attorneys
cited case law allowing a jury verdict by majority vote if both sides agreed,
and we said we would agree. The defendants refused, blocking that approach. Our
side also cited case law supporting giving stronger instructions to the jury
to try to resolve differences. The judge agreed to do that.
The judge also agreed with our suggestion that she call the jury foreperson
into her chambers to ask if all jurors were participating in deliberations.
She did so, and reported that the foreperson said there was an abundance of
deliberation. The judge then called the jury into the courtroom and gave them
the stronger instruction to work to resolve their differences. But it was no
use, and a half hour later the clerk said there was another note from the jury
foreperson saying the jury was hopelessly deadlocked, and further
deliberations would be pointless.
The judge called the jury back into court at 3:15 and asked for a show of
hands by any juror who felt that further deliberations would be useful. When
no one raised a hand the judge accepted that the jury was deadlocked. She
dismissed the jurors, telling them that they are now free to talk about the
case to anyone they pleased, or not to. Many jurors did stop in the hallway
afterward and shared their views with reporters, plaintiffs and
The judge set a deadline of Oct. 10 for motions from both sides, and a date
in November for a hearing on those motions. It was just such a motion from the
defense after the first trial that the original judge used as a vehicle to
decide the case in favor of the defendants and block a new trial, a decision
that was overturned by the appellate courts.
Lead counsel Dennis Cunningham said the plaintiffs are ready to go back to
trial at the earliest opportunity. Spring Lundberg noted that the first trial
jury deadlocked four to four, that this time it was six to two in our favor,
and that "next time we'll do it better and win it. The third time's the
(For another report on the second trial outcome see the 9/22/04
Starts Sept. 8, 2004 — Your Support Is Needed
(Our August 2004 letter to supporters)
The Headwaters Forest pepper spray trial is fast approaching, and it
couldn't be a more pivotal time!
Recall the shocking TV news footage: Humboldt County police forcing
pepper-spray soaked Q-tips into the eyes of nonviolent protesters at
sit-ins for the protection of the ancient redwoods of Headwaters Forest in
northern California. The 1997 incidents drew international outrage and
condemnation. The ACLU called the officers actions tantamount to torture.
We are the Pepper Spray 8. Please stand with us to obtain justice for our
case and to protect the freedom of dissent in our country by donating
Over the last 7 years we've successfully fought numerous legal obstacles,
from a biased judge and venue in the heart of timber country to scrutiny
by the US Supreme Court. A recent ruling has moved our trial back to San
Francisco with a new judge. This September 7, 2004, in a San Francisco
federal courtroom before Judge Susan Illston, our case will finally have a
We have a good chance of prevailing with the same award-winning legal team
that won a stunning jury verdict last year for Earth First! activists Judi
Bari and Darryl Cherney against the FBI and Oakland Police. In addition,
earlier court decisions have created case law which strengthens our
position before the jury.
We need your tax-deductible donation to seize the opportunity to obtain
justice. Even though our expert civil rights lawyers only get paid if we
win we still face thousands of dollars in trial support costs. Creating a
temporary office and outreach to the press and the community are critical
to the success of the trial.
Also, we need you to come and witness the trial. A courtroom full of
people who want pepper spray torture stopped can make a huge impact!
Recent global events have illustrated that police abuses spread when
authorities decide certain groups and individuals don't deserve human
rights protection. Shockingly, state officials have condoned what police
did to us by incorporating these practices into guidelines for dealing
with civil disobedience in California! This case can turn that around.
A dramatic election year is upon us, and the world is watching. It has
never been more important to defend our rights to be free from torture by
chemical weapons. Stand with us against police brutality! Defend your
rights! Send your tax-deductible donation today!
Spring Lundberg, Terri Compost, Mike McCurdy, Sam Neuwirth, Maya Portugal,
Lisa Sanderson-Fox, Jennifer Banka Schneider, and Noel Tendick.
To help support the Pepper Spray Case you can donate three ways:
1) Send your check or money order to:
Pepper Spray Fund
c/o Trees Foundation
PO Box 2202
Redway, CA 95560
2) By Credit Card: (print, fill out and mail to above address)
Name On Credit Card:____________________________________
Mailing Address: ________________________________________
City, State, Zip __________________________________________
Visa __MC __Card Number ________________________________
Exp. Date ___________
3) Click on the link to make a secure
online donation through Trees Foundation
on August 24, 2004 pretrial hearing
Defendants Ask Judge to Ban Any
Mention of Headwaters Forest or Pacific Lumber During Trial; Hearing
continues Monday Aug. 30 at 4PM.
The final pretrial on Aug. 24 finally
began after 4 p.m., with our legal team and the defendants' lawyers each
trying to define what testimony and evidence would be allowed in the trial.
The hearing is not finished, and will continue at 4 p.m. on Monday, Aug. 30.
Among the hotter issues was the defense asking the judge to bar
plaintiffs witnesses from mentioning Headwaters Forest, Pacific Lumber or
logging issues at all. Our lawyers objected that this would strip the case
of all the context for the protests in which pepper spray was used. Judge
Illston agreed, saying that the defense could make normal objections on the
basis of relevance, and she would decide those in the usual way, but she was
not going to issue a blanket rule banning all mention of the issues and
circumstances of the protests.
The defense is trying hard to resurrect the issue of qualified immunity,
a legal doctrine that shields law enforcement officers from being sued if a
reasonable officer could believe that his or her action is lawful. The judge
in the first trial of this case, Vaughn Walker, granted qualified immunity
to the two individual defendants, ex-sheriff Lewis and current sheriff
Philp, but he was overruled by the 9th Circuit Court of Appeals. Our lead
counsel Dennis Cunningham argued that immunity is a question of law, not of
fact, meaning it is for the judge to decide, not the jury. Also, he said,
the question of immunity is supposed to be decided early in the litigation
in order to spare officers from the burden of preparing for trial if they
are immune. Defense attorney Nancy Delaney argued strongly that the jury
should decide the issue after hearing all the evidence. Judge Illston took
the issue under submission, and will rule on it later.
The defense wants to bring in videotapes of many other protest actions
prior to the three in 1997 when the pepper spray torture tactic was first
used. We objected that it is an effort to demonize logging protesters and
make it seem okay for police to punish them with pepper spray.
Because this trial is a continuation of the 1998 trial before Judge
Walker, Judge Illston said she was inclined to adopt Walker's rulings on
motions about evidence made during the first trial, but she allowed
arguments about them as she made her way down a list of twenty-some motions.
At 5:30 p.m. Judge Illston said that the hearing would have to be continued
later because the courthouse was closing and there were still too many
issues to dispose of. After some discussion the judge said the hearing would
resume at 4 p.m. on Monday, Aug. 30.
We learned that due to likelihood that the trial scheduled just before
ours will run a bit longer than originally planned, our trial may not begin
until Sept. 8, a day later than scheduled. The trial will be held beginning
at 8:30 a.m. each day and ending at 3:30 p.m. with a 45 min. lunch break and
two shorter breaks in the morning and afternoon. Trial sessions will not be
held on Fridays. Judge Illston has allowed eight days for the trial. There
will be eight jurors.
Supreme Court brief filed
Our legal team filed a brief with the U.S. Supreme
Court in opposition to the defendants' appeal. The document is available for
viewing or download as an Adobe Acrobat PDF file.
Click to read Opposition
to Petition for Certiorari (289 KB)
Judge Sets Sept. 7, 2004 Retrial Date as Defendants Appeal Again to Supreme
Court (updated 2 /21/04)
Judge Susan Illston set the retrial date in our case for
September 7, 2004 in Federal District Court in San Francisco. At the first
hearing before the new judge, Judge Illston granted our request to delay the
trial a few months. One reason was that our star paralegal, Alicia Littletree, is
expecting a baby in February. Lead counsel Dennis Cunningham told the judge
that Alicia's participation is vital to prepare the case for trial.
Another reason to hold the trial later was the appeal
filed by the other side. By September it will be known whether the
Supreme Court has agreed to hear the appeal, which if so would delay the
trial until the appeal is decided.
Defendants Humboldt County, City of Eureka, the ex-sheriff
and his chief deputy (the current sheriff) appealed again to the
U.S. Supreme Court, this time seeking to overturn the 9th Circuit Court of
Appeals ruling removing Judge Vaughn Walker for bias and canceling his
attempt to move the trial from San Francisco to Eureka. Eureka has long been
the scene of roiling political controversy over logging by Maxxam/Pacific
Lumber, which is currently bankrolling an effort to recall Humboldt County
District Attorney Paul Gallegos, who filed a fraud suit against the lumber
giant last year. The pepper spray torture incidents that gave rise to our
case all happened during nonviolent protest demonstrations against
Maxxam/Pacific Lumber logging of old-growth redwood forests.
Won't Reconsider Its Ruling In Our Favor (posted 10/24/03)
Our civil rights lawsuit moved a step closer to a new
trial this week when a federal appeals court denied a defense petition to
reconsider a recent decision replacing the original trial judge for
appearance of bias and canceling that judge's order moving the trial from
San Francisco to Eureka. The new judge has set a hearing for November 21.
On October 22 the U.S. 9th Circuit Court of Appeals denied
a petition by Humboldt County and the City of Eureka for a rehearing of
plaintiffs' emergency writ. The action reconfirmed the appellate court's
September 2 ruling in favor of plaintiffs (us).
Pursuant to the September ruling, Judge Vaughn Walker, who
presided over the first trial of the case in 1998, has been replaced by
Judge Susan Illston. Judge Illston has scheduled a hearing for November 21
at 230 PM, when she is expected to set the date for a new trial in U.S.
District Court in San Francisco.
Dennis Cunningham, lead counsel for the Headwaters Forest
activists, said he was pleased with the appeals court's latest action and
was looking forward to taking the case to trial.
Grants Our Appeal! (posted 9/2/03)
The Ninth Circuit Court of
Appeals' five page Order grants our (plaintiffs') petition for a
writ of mandamus, reassigning the case to a different judge and
restoring the case to San Francisco for trial. The Order was filed 9/2/03.
The Court sided with plaintiffs in finding that
"Eureka and Humboldt County are known for their strong ties to the
logging industry and that there have been many incidents of hostility
directed toward environmental activists in Eureka and its environs."
The Court further observed that "Although
there is a federal court facility in Eureka, no federal district judge has
held a trial there in the last thirty years."
The Court therefore ruled that "On
this record it appears that the district court's actions reveal an
appearance of an absence of impartiality sufficient to warrant reassigning
this case. We therefore GRANT petitioner's requested relief and
direct the Clerk of the Northern District of California to reassign this
case to another district judge through the Northern District's random
selection process; we also VACATE the order transferring the re-trial to
here to read the 9th Circuit's Order. (PDF
file, 104 KB)
Reply Brief in Support of Petition for Writ of Mandamus,
etc. filed 6/2/03 (PDF file, 50KB)
The Reply Brief rebuts the arguments in
Defendants' Answer Brief. Regarding the issue of location of trial,
we argue that Eureka is a hotbed of hostility to forest defense activists
and our cause, that census figures cited by defendants are a diversion, that
the protest context of the case is relevant, and that the
defendants' claim that we are forum shopping is a perversion of the
term. Regarding the issue of recusal of Judge Walker, we argue that
our motion was timely, that the judge did not give us a fair opportunity to
respond to his moving the trial to Eureka on his own initiative, that the
judge's effort to revive the issue of qualified immunity without any legal
basis for doing so is evidence of bias, and that the district court has
dodged the issue of the appearance of bias.
The U.S. 9th Circuit Court of Appeals has
now received all the briefs for consideration of our petition for writ. We
now await the court's decision, which should come in a matter of weeks.
legal documents page contains copies of the two orders which we have appealed
to the 9th Circuit in our Petition for Writ of Mandamus:
Denying Motion for Recusal of Judge Walker and
Denying Motion re Situs of Trial.
Appeals court stay order temporarily blocks Eureka trial from starting!
We received the good news
late Thursday, May 8, 2003 that the U.S. 9th Circuit Court of Appeals issued a stay
order (PDF file) today delaying our trial until our emergency appeal is
decided. Our case was assigned to the same three-judge panel which handled
our previous appeal and strongly reversed Judge Walker's decisions
dismissing our case and granting immunity to the sheriff and his chief
Attorney Ben Rosenfeld,
who prepared the emergency appeal, had this to say: "We are grateful
the court has taken our appeal seriously because it is serious. We
were ready to go to trial on May 12 as scheduled, but we want it to be a
fair trial with an unbiased judge and jury, and this is the way that can
happen. Of course, there has been no decision yet on our petition to hold
the trial in San Francisco and assign a different judge. But the 9th Circuit takes
our arguments seriously enough to delay the trial until it has time to
consider them carefully. We are hopeful that they will ultimately make the
Today's order instructs the defendants in our
suit to file a
response to our petition for writ of mandamus by May 20. We will have until June 2 to file a reply. We
think the appellate panel will make a
decision sometime in June.
Plaintiff Spring Lundberg
commented on KMUD radio news this evening: "I love Humboldt County, I love the forests
here, and I love the people. I think it's unfortunate that a multinational corporation is ripping us
apart. I believe in bridging the gap between workers and forest defenders,
and I hope that can happen and heal our community. I do love Humboldt County, but I believe that our pepper spray trial needs an international forum, and that will happen if we get a trial in San Francisco.
And I would just add that this case should no more be tried in Eureka than a civil rights trial in 1965 should be moved to Selma, Alabama."
You can listen to a streaming
MP3 file of the KMUD news segment on our Audio Page.
have filed an emergency appeal writ re location of trial and reassignment
of judge (posted 5/6/03)
Today our legal team filed an emergency motion and
petition for a writ of mandamus with the 9th Circuit Court of Appeal seeking
quick action to keep the trial in San Francisco and to remove Judge Walker
from our case for bias against us.
You'll find the complete appeal documents in legal format
on our Legal Documents page. Below
is most of the text of the Emergency Motion, which provides a brief summary
of the reasons for the appeal and the need for immediate action. (A few
legal citations and other details have been abridged here for brevity and
simplicity. We are the "plaintiff-petitioners.")
Motion to Consider and Decide Petition for Writ of Mandamus on Shortened
Time (abridged, boldface
added) filed 5/6/03
Plaintiff-petitioners request that the Court consider and decide their
"Petition for Writ of Mandamus and Exercise of
Supervisory Authority," filed herewith, on an emergency time
basis, in order to prevent irrevocable harm resulting from the district
judge's decision to move the retrial of this case, scheduled to begin in
just one week, on May 12, 2003, from the neutral place of San Francisco --
where the first trial occurred, all papers have been filed, and all
hearings have been held -- to Eureka, a community pulsing with active,
current, overt hostility toward plaintiffs and their interests. Plaintiffs
have exhausted all remedies in the district court.
The district court has articulated no good reason for changing the
place of trial. It is readily apparent that plaintiff environmental
activists cannot get a fair trial and an impartial jury in Eureka, a
community where logging interests predominate, and daily radio, print, and
television ads by the Pacific Lumber Company (the main object of
plaintiffs' protests) equate environmentalists with
"terrorists", and exhort the community to band together to
"defend" itself against them. Plaintiffs have submitted numerous
press clippings and declarations, including one from the Mayor of Arcata,
attesting to the community's hostility toward environmental activists.
Plaintiffs respectfully request that this Court intervene swiftly, in
order to prevent a miscarriage of justice and a waste of everyone's
resources, and direct the district court to return the trial to San
Francisco, the site chosen by plaintiffs in order to avoid the very
prejudice they now face. In addition, plaintiffs request that the Court
order the case to be reassigned to a different district judge, in order to
curtail his actual and apparent bias, manifested by a series of rulings
which have no rational purpose except to ensure plaintiffs' defeat, and
thereby vindicate his dismissal of the case in October 1998, after the
first jury deadlocked, before he was firmly reversed by this Court.
Plaintiffs are eager to begin the retrial of this case, but only if
they can hope to actually resolve it, before a fair and impartial jury.
The course set by the district judge, however, portends an unfair trial
and another appeal. Therefore, plaintiffs are willing to suffer a delay in
the trial schedule in order to prevent the impending miscarriage of
(click for full version PDF file)
Click to jump to
the abridged introductory sections of Petition for Writ on the Legal
official appeal papers are on our Legal Documents Page
denies trial location motion (posted
Judge Walker has denied our motion to hold the retrial in San Francisco
instead of moving it to Eureka. "We want the appellate court to
intervene, and order the case to remain in San Francisco so it won't be
tried in a hotbed of prejudice," our lawyer Dennis Cunningham told the
Press Democrat. The federal appellate court has the power to issue a stay
order delaying the trial until it can hear the appeal, but it is rare for it
to do so.
In his ruling released April 29, Walker said, "This case is not about
the so-called 'Timber Wars,' but instead about police practices." We
strongly disagree; this case certainly is about the timber wars. All
three pepper spray torture incidents that are the basis of this suit took
place during protests against Pacific Lumber logging of Headwaters Forest.
They were part and parcel of a continuing nonviolent struggle over
Headwaters and old-growth logging that is the centerpiece of what some call
the timber wars. Yes, the case is about police practices, but only in the
context of the timber wars. The important issue is not whether the judge can
pretend there's no connection, but whether the average juror in Eureka could
treat forest defense protesters impartially in a case where the police were
acting on behalf of the timber industry.
Unless the appeals court blocks it, the trial begins on Monday, May 12 in
a federal courtroom in Eureka, the heart of redwood timber country, in a
community deeply split over timber industry vs. forest activist issues. Also
on May 12, the Humboldt County DA will file additional charges in state
court in the fraud suit against Pacific Lumber, guaranteeing that
controversy will be roiling during jury selection and opening arguments in
our case. There will also be a major hearing in the DA's case on May
(Note: the appeals court blocked it, see item above)
Humboldt Truth In Action
Center (posted 5/5/03)
At the linked site you can sample the Pacific Lumber propaganda ads smearing nonviolent
activists as "ecoterrorists" and see a letter to PL bosses asking
them to cease and desist such divisive ads. A May 5 press release from the
Bay Area Coalition for Headwaters said:
More than 60 doctors, lawyers, City Council members, clergy and local
residents from this rural community have called for the cessation of ads
broadcast on radio, tv and newspapers by Maxxam/Pacific Lumber. The ads
attack protesters carrying out acts of civil disobedience against
unsustainable logging as terrorists, accusing them of
"terrorizing innocent people", urging those listening to the ads
to "protect our fundamental freedoms and rights".
Their attempts to whip up public sentiment against those who would oppose
their management practices have the backdrop of an already polarized
environment, since PL's over-cutting has put many people out of work in
this timber-dependant community.
But as tree-sitters have been plucked from high altitude perches in
giant old growth redwoods by contract climbers hired by PL to essentially
carry out law enforcement activities, using pain compliance holds and
binding activists' ankles and wrists upwards of 150 feet off the ground in
the branches of giant old growth trees, the activists argue it is their
rights at risk. In fact, in an appeal of a judge's siting of an
upcoming jury trial over police use of pepper spray on protesters staging
a sit-in protest in Humboldt county, lawyers argued a fair trial is
impossible in a "hotbed of prejudice" created by the timber
company's smear campaign.
Click here to read the letter to PL
and sample the smear ads. (The link opens in a new window; close it to
on Apr 24
on judge bias and trial site motions (posted
The April 24 hearing took place in the San Francisco Federal Building
before Judge Vaughn Walker. It was a case status conference that included a
hearing on our motion to reverse Judge Walker's move of the trial to Eureka.
Our lawyer Bob Bloom ably and forcefully argued the motion which he had
drafted. Bob pointed out that it was unprecedented to move a trial from an
unquestionably neutral area like the Bay Area to a decidedly non-neutral
area like Eureka, especially when no one asked the judge to move it there in
the first place.
Bob likened the degree of hostility toward forest protesters in Humboldt
to Alabama in the era of the civil rights struggles of the 1960s. He told the judge that a recall election against the new Humboldt
DA Paul Gallegos had just been formally filed, and that the main reason for
it was a
major fraud suit the DA has filed against Pacific Lumber. There have been
daily front page newspaper stories about conflict in the community between
supporters of Pacific Lumber, including its hundreds of employees and
contractors, and those who applaud the new DA for finally making the big
corporation subject to the law, who include forest activists and their
Evidence presented to show the state of extreme political turmoil and
polarization in Humboldt County included newspaper
articles and editorials and sworn declarations
from people including lawyers and elected officials, including the mayor of
Arcata. To a great degree, the turmoil is deliberately whipped up by Pacific Lumber,
which has currently been spending tens of thousands of dollars running
propagandistic TV and radio commercials and
full page newspaper ads portraying nonviolent activists like our plaintiffs as
"ecoterrorists" to be feared and loathed by decent citizens. You
can listen to an MP3 file of the radio commercial from a
link on our Audio Page.
On the issue of recusal of Judge Walker for bias against us, our motion was brought under two
provisions, one based on actual bias against us, and one based on the
appearance of bias. On April 23, Judge Phyllis Hamilton ruled that it was not proved
that Judge Walker was actually biased against us. Judge Walker made a
point of reserving for himself the decision on whether an average person in the
street would think he is biased, which would require him to recuse himself.
He did not give us his ruling on that
at the April 24 hearing. There is a third reason Judge Walker should not
preside over this trial if it is held in Eureka; there's a court rule that
when a trial is moved to a new location, a new judge shall be randomly assigned to hear
it. Judge Walker said that moving the trial to Eureka was not technically a
change of venue in the legal sense, since both Eureka and San Francisco are
administered by the same U.S. District Court. However Bob pointed out the
rule specifically requires a new judge when trial is moved to a new
courthouse. We believe that any unbiased judge would immediately move the
trial out of Eureka.
Though the hearing was scheduled for 3 PM, Judge Walker dealt with three
other cases before ours, finally beginning our hearing at 4:20 and ending it
at 5:58. The judge did not rule on the trial location motion or the
remainder of the recusal motion, saying only that we would hear from him
about them, but not saying when. (See update in the next item above on
Motions to move trial to SF, replace judge
Our legal team filed two important new motions April 14
seeking to move the re-trial of our case back to San Francisco, where we
filed the case and had our 1998 first trial, and also to recuse (remove) Judge Vaughn Walker for bias against the plaintiffs.
Also filed was our Plaintiffs' Trial
Brief, which summarizes the case background, claims and relevant case law.
You can read the motions on our Legal
Documents Page along with supporting documents, including
sworn statements by attorney Tony Serra and several elected officials
attesting to the extreme hostility against environmental activists and their
lawyers in Humboldt County.
Below are two newspaper stories about these
Spray Trial Move to SF Sought
activists contend Humboldt County community's hostility precludes fair jury
April 15, 2003
By MIKE GENIELLA
THE PRESS DEMOCRAT,
Santa Rosa CA
Contending recent anti-logging protests have made Humboldt
County "too polarized" to allow a fair retrial, environmental
activists Monday asked a federal court to move to San Francisco a federal
suit over use of pepper spray against protesters.
The high-profile case is set for May 12 in a Eureka
federal courtroom, but activists' attorneys said local residents harbor
"extreme hostility" toward environmental activists, especially in
view of current tree-sitting protests and other anti-logging tactics.
"This case should no more be tried in Eureka than a
civil rights case in 1964 should have been moved to Selma, Alabama, for
trial," attorneys said in a motion filed with the U.S. District Court
in San Francisco.
Read the rest of the Press Democrat
Read the Plaintiffs
Motion re Situs of Trial and supporting documents on our Legal Page
U.S. District Judge Vaughn Walker is
biased against environmentalists and is recklessly changing the case venue,
lawyers in a police-brutality suit allege.
April 15, 2003
By Dennis Pfaff
Staff Writer, Daily Journal (San Francisco
SAN FRANCISCO - Lawyers representing North Coast activists
who were pepper-sprayed during antilogging demonstrations in 1997 filed a
motion Monday to remove U.S. District Judge Vaughn Walker from their
police-brutality case, claiming he is biased against them.
In addition to recusing Walker, the plaintiffs moved to
block his decision to shift a retrial of the case to Eureka. The plaintiffs
warned that holding the proceedings in that polarized community could be
physically dangerous and would reverse conventional wisdom for changing
"This case should no more be tried in Eureka than a
civil rights case in 1964 should have been moved to Selma, Alabama, for
trial," the attorneys wrote. Eureka, they said, "is the center of
a war zone."
The protesters, in seeking to remove Walker from the case,
cited findings made by the judge when he dismissed the lawsuit when it first
came before him in 1998. Some of those findings, the plaintiffs alleged,
were factually wrong.
They said Walker betrayed his slant when he abruptly
decided earlier this year to move the retrial to the "extremely
hostile" city of Eureka.
"There can be no doubt that the conduct of Judge
Walker demonstrates, both objectively and subjectively, that Judge Walker is
biased and prejudiced against the plaintiffs in this case, and that any
reasonable person would believe that to be the case," the plaintiff
Read the rest of
the Daily Journal story
Report on March 27,
2003, Summary Judgment Motion Hearing
A hearing on summary judgment motions by both sides in our case
took place on March 27 before Judge Vaughn Walker in San Francisco. Our
lawyers Dennis Cunningham, Bill Simpich, and Tony Serra argued eloquently our points on summary judgment,
reopening of expert witness evidence, and moving the trial back to SF,
respectively (without yet filing any formal motion on the latter).
It looked for a time like Dennis had really turned the judge around and
made him think about granting our summary judgment motion. Then, the
judge seemed to snap back into place like a rubber band, saying at the end
of the hearing that we should be prepared to go to trial, hinting that he
was going to deny the summary judgment motions.
The judge did not seem very sympathetic to Tony's passionate argument that
Eureka is so inflamed — given the uproar over the DA's fraud suit
against Pacific Lumber and the Freshwater treesitter extractions — that
the lawyers and plaintiffs risk being lynched there.
A few days after the hearing we got word that the judge denied all motions and said that the trial will
begin May 12 in Eureka as previously set.
Read the Plaintiffs' Motion
for Summary Judgment on our Legal
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