From Seattle Times – From Times staff reporter Mike Carter
The 9th Circuit Court of Appeals has ordered a new trial for accused Earth Liberation Front arsonist Brianna Waters, saying her 2008 conviction stemming from the May 2001 arson at the University of Washington Center for Urban Horticulture was riddled with judicial errors.
The three-member panel unanimously sent Waters’ case back to the U.S. District Court in Tacoma for a new trial.
“While the evidence against Waters may have been sufficient to sustain her conviction, our review of the record does not leave us convinced that her conviction was fairly obtained,” the judges wrote.
The U.S. Attorney’s Office declined to comment Wednesday on the ruling.
The 34-year-old Californian was sentenced in June 2008 to six years in federal prison and ordered to pay $6 million in restitution by U.S. District Court Judge Franklin Burgess.
Writing for the panel, Judge A. Wallace Tashima said Burgess made a “number of errors,” including allowing the jury to review “highly prejudicial” articles that Waters purportedly gave to another defendant, who pleaded guilty to the arson and testified against Waters in exchange for leniency. The appeals court found the content of the articles – which were emphasized by federal prosecutors at trial – was inflammatory and the government’s efforts to tie them directly to Waters was weak.
“We believe that the appropriately skeptical eye would have excluded the articles from Waters’ trial,” the opinion said. “The articles were highly prejudicial. While most espoused anarchist political theory, a number advocated violence in no uncertain terms,” including advocating attacks on Wall Street, Disneyland and the Statue of Liberty.
“Their repugnant and self-absorbed embrace of destruction is likely to have swayed jurors’ emotions, leading them to convict Waters not because of the facts before them but because she represents a threat to their own values,” the judges wrote.
At the same time, Burgess had prevented Waters from showing jurors a documentary she had worked on pushing for non-violence, thus “compounding the error” of admitting the articles while “depriving Waters of her opportunity to demonstrate that her purported belief in non-violence was genuine” the court ruled.
Beyond those mistakes, the appeals court said, Burgess committed another serious error during her 2008 trial by not inquiring whether jurors had read “highly prejudicial” news stories that occurred during her trial after ELF claimed credit for a March 2008 arson that damaged several “Street of Dreams” homes in South Snohomish County. There was speculation at the time that ELF may have timed the arson to coincide with Waters’ case.
The court said some of the articles drew those connections and mentioned Waters’ ongoing trial. However, Burgess turned aside defense requests to question the jurors about whether they had seen the coverage. Instead, the judge admonished the jurors to not read the stories, or ignore them if they had.
“We agreed with Waters that the district court’s statements to the jury were inadequate in light of the highly prejudicial nature of the publicity,” the appeals court wrote.
The court found that the trial contained a number of other significant errors, including a decision to close a pretrial hearing to the public and media and exclude the public from much of the jury selection process.
The appeals judges rejected Waters’ claim that the government conspired against her by withholding evidence that one of the key witnesses against her had not initially identified her as being in the cell that attacked the UW horticultural center.
Dennis Riordan, Waters’ San Francisco lawyer, did not immediately return a telephone call for comment.
To read the ruling, click here.
Waters, a violin teacher, is one of five activists accused of the UW arson, which prosecutors say caused more than $6 million in damage while destroying rare plants, books and years of research. She was convicted of two counts of arson, but not of other charges, including the use of a destructive device in a crime of violence, which carried a 30-year mandatory minimum sentence.
The Earth Liberation Front had targeted the UW office of Toby Bradshaw, whom arsonists mistakenly believed was involved in genetically engineering poplar trees that would pollute natural forests.
Waters was the first of 18 suspects indicted on charges of involvement in the Earth Liberation Front, a militant Northwest underground group that between 1996 and 2001 claimed it carried out more than a dozen acts of arson and sabotage against targets deemed a threat to the environment or animals. Damage was estimated in the tens of millions of dollars. Targets included a slaughterhouse, timber-company headquarters and a ski lodge at Vail, Colo.
Lacey Phillabaum, 35, was sentenced to three years in prison and Jennifer Kolar, 37, was sentenced to five years in prison for their roles in the UW arson. Both Phillabaum and Kolar testified against Waters.
Also charged in connection with the arson were: William C. Rodgers, who committed suicide in December 2005 while being held in an Arizona jail, and Justin Solondz, 29, who is charged with arson and using a destructive device in a crime of violence. Solondz left the country and was convicted by a Chinese court of manufacturing drugs and is serving a three-year-sentence.
The UW’s new $7.2 million Center for Urban Horticulture reopened in January 2005.