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September 2010, Week 5

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Thu, 30 Sep 2010 21:34:51 -0400
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Environmentalist Activist's Conviction Overturned

Robert Meeropol

Rosenberg Fund for Children

http://www.rfc.org/blog/article/625

In a surprising turn of events, last week the Ninth Circuit
Court of Appeals overturned environmental activist Briana
Water's 2008 arson conviction.  In a unanimous decision by a
three-judge panel the Appellate Court cited several grounds
for its decision that "Waters' trial suffered from a number
of [reversible] errors" (read the full ruling at
http://seattletimes.nwsource.com/ABPub/2010/09/15/2012903649
.pdf).  I will focus on one issue that illuminates how
conservative judges in collusion with authoritarian
prosecutors are stacking the deck against activist
defendants.

The government said Waters acted as a lookout for an Earth
Liberation Front (ELF) arson. Waters' main defense was that
she opposed the tactics of the ELF action because it
threatened human life and she was a non-violent person who
did not wish to hurt anyone.  Over Waters' attorney's
objections, the government introduced into evidence a folder
containing articles advocating the violent destruction of
all society.  Waters acknowledged giving the folder to her
alleged co-conspirators, who were now testifying against her
in exchange for leniency, but swore the articles it
contained when she handed over the folder were about "women
and activism and vegetarianism."   The appellate court noted
that while Waters' fingerprints were on the folder, they
were not on the articles advocating violence.  Moreover, the
court noted that the prosecutors emphasized the content of
the articles to the jurors even though they had not tied
them to her adequately.  The appellate court concluded that
the trial court judge erred in admitting this material into
evidence.

The three justices also pointed out that the trial court
judge compounded his error by refusing to allow Waters to
introduce a film she'd made of a successful effort to defend
a grove of old growth redwood trees by using creative non-
violence.  In other words, the trial court judge allowed the
government to introduce material advocating violence that
was not clearly tied to Waters, but refused to allow the
defendant to present material she herself created that
advocated non-violence.  It doesn't take an experienced
lawyer to figure out that by skewing the evidence in this
manner the trial court judge enhanced the prosecution's case
while crippling that of the defense.

Waters won this round, but the news isn't all good.  The
Ninth Circuit Court of Appeals is the most liberal of the
federal appellate courts, and the panel included two of its
most liberal members.  I have little doubt that most of the
appeals court justices in other circuits would have had
little difficulty in finding there was nothing wrong with
the evidentiary rulings I described above.  In most other
circuits Briana wouldn't have had a chance of overturning
her conviction even though, for the reasons described above
as well as several others, she did not receive a fair trial.
Our federal judiciary now is chock full of very conservative
judges who will do their best to have as many progressive
militants locked up as possible.

Finally, you may wonder what Briana faces now.  I received
an email on September 15th from the Friends of Briana Waters
(http://groups.google.com/group/brianaproxy2?hl=en), which
stated:  "The case basically returns to its pre-trial state.
Briana is still accused of these crimes ... and could
potentially face re-trial.  Her status as a prisoner should
likewise return to the pre-trial state meaning hopefully she
will be released on bail in the near future."  As of today
Briana remains in prison.  People who wish to keep up with
breaking news on her case could join the discussion group
listed above.

About the author: Robert Meeropol is the younger son of
Ethel and Julius Rosenberg. In 1953, when he was six years
old, the United States Government executed his parents for
"conspiring to steal the secret of the atomic bomb." Since
1990 he has served as the Executive Director of the
Rosenberg Fund for Children (www.rfc.org), a non-profit,
public foundation that provides for the educational and
emotional needs of both targeted activist youth and children
in this country whose parents have been harassed, injured,
jailed, lost jobs or died in the course of their progressive
activities.

_____________________________________________

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