Coronado Trial: 9/17/07 Court Notes
The day began with Jury Instructions, summarized in part below.
The burden of the Jury is to deliver a verdict based on the charges,
returning a not guilty verdict if not convinced beyond a reasonable
The burden of the government is to prove that:
The defendant taught or demonstrated the making or use of a
The defendant intended that the teaching or demonstration of the
device would be used for, or in furtherance of, a federal crime of
At the time, both the intent and tendency of his actions were to
provoke or incite an imminent crime of violence.
The Judge defined the defendants theory of defense as that he did not
have intention, and that his actual words did not incite an imminent
crime of violence.
The judge also added that an incendiary device is a destructive
device, that arson is a federal crime of violence, that past
speeches, and demonstrations have been admitted to help establish
intent (Note: there were lots of these: the American University
speech, more inflammatory that the 2003 speech at issue, 60 minutes
interview, and even the 2003 condo fire that took place 15 hours
before Rod was in San Diego.
Closing remarks by prosecuting U. S. Attorney John Parmley:
Parmley described Rod as a recruiter and mentor of arsonists, that
his intent in the San Diego speech when he commented on the fire that
morning was to glamorize it as a success because it got media
attention. In this regard, Rod made arsonists out to be heroes and
thus influenced his audience to do such actions.
Numerous citations from events other than the speech at question were
used to paint Rod in a negative light, including:
1. undated writings taken from his personal computer in which Rod
calls for the revolution to begin, and where he admits to teaching
people how to build firebombs.
2. an interview with 60 Minutes, where Rod admits to wanting people
to be courageous enough to act on their beliefs.
3. a speech at American University, prior to the San Diego speech,
where Rod describes having no faith in writing letters and espouses
the philosophy of life over property and profits, and calls
4. an editorial in the Earth First! Journal entitled "In Case of
Fire, Let It Burn (Baby).
The prosecutor attacked the defense witness who asked Rod the
question, suggesting her testimony is disingenuously na´ve. Parmley
described Rod as a traveling arson recruiter, in San Diego for a few
short hours and with a focused mission to recruit more arsonists for
his causes. Regarding the legal requirements of imminent threat in
the charges, the prosecutor took Rod's statements about the extreme
planning and caution to protect life in his past actions to suggest
that seeds of relatively imminent arsons, subject to a similar
planning process, could have been sown at the San Diego lecture.
Much of the prosecution's closing, as in the trial itself, sought to
play on the emotions of fear, present the most inflammatory
statements and images available to them, including a lengthy ending
image of the fire in San Diego the morning of Rod's talk.
Defense's closing arguments by Tony Serra:
In sharp contrast to the government's sensational imagery and
displays of incendiary rhetoric, Tony Serra weaved together an over
two-hour riveting presentation of the essence of the language of the
statute in question, the actual evidence in the trial, and the
responsibility of the Jury relative to the nature of the US legal
Repeating the Jury instructions, he reminded them that their decision
is not to be based on personal likes or dislikes, and that the
question before them is essentially if the defendant's actions, and
only the actions of August 1, 2003, intended to cause an imminent act
of violence. He displayed on the overhead screen sections of the
judge's jury instructions a number of times.
To back up Rod's innocence, he stated that Rod had not come to San
Diego as a recruiter, but rather had given a standard speech about
his life's work, and ideology, and the question which led to the
charge against him was spontaneous. In glowing praise of the US
judicial system, he appealed to the jury to apply logic and reason
and examine the facts of the case. The law is constant, a beautiful
thing, it protects us from harm. One does not surrender common sense
when one enters the portals of the courts system.
Serra then goes into the heart of the defense, the failure prove that
an imminent lawless action was provoked by Rod's words. Listing
myriad synonyms of the word imminent, the point was driven home that
the exception to protected free speech covered in the statute under
which Rod is charged (the "Brandenberg" exception) has the purpose of
preventing immediate violent action and harm, incited by words. Such
words would clearly be a direct call to immediate action ("Follow me!
Let's go burn it down!") Serra's dramatic and elegant oratory skills
were quite effective in illustrating examples of protected versus
unprotected speech in hypothetical reenactments of turbulent US
social struggles. Imitating the voices of The Boston Tea Party,
vigilante justice in the racist South, the Longshoremen's labor
struggle of 1930's, and an uprising in the Castro District in San
Francisco in the 60's following two murders of progressive leaders;
Serra exemplified ways in which the words of those events could have
"crossed the line" between protected and unprotected speech.
Concerning some of the prosecution's evidence, Serra qualified that
Rod was once in a point in his life where he committed illegal acts,
and for which he went to prison. He then became a movement
spokesperson, and thus an advocate. In doing this, he was protected
by the First Amendment; even though his speech was political, and
offensive to some, allowing that it was likely offensive to some on
the jury, it was protected. Serra stated that a free society, to
avoid becoming totalitarian, must allow all to espouse their
ideology, and seek to protect the speech and ideas that offend us
most. To the Jury: "Although you may hate his ideology, love the
concept that protects his freedom of speech."
Regarding the question asked of Rod in 2003: the person who asked the
question demonstrated no intent or desire to actually commit an
arson, and testified to that as well. Tony reminded the jury that Rod
hade also cautioned the audience about the risks involved in such
actions, citing Jeff Luers, who received a 22-year sentence for
burning three SUV's at a car dealership; those words were a red
light, not a green light, said Serra. No one at that talk was
inculcated with the mentality to go out a commit violent crime.
In order for the Jury to judge intent, they need to understand the
law clearly, to induce or deduce. They must by completely sure in
order to reach a conviction on his intent. If it was possible to them
that his intent was to incite imminent action, or even probably,
they must deliver a finding of not guilty. A preponderance of
evidence, still requires not guilty. Only if the Jury believes that
beyond all reasonable doubt that it was intention to incite imminent
action should he be found guilty. The hallmark of reasonable doubt:
reject that which points to guilt, embrace that which points to
innocence. The only way to reach a conviction in this case would be
for the Jury to reject the qualification of imminence, and throw that
part of the instructions out the window.
On the Prosecution's "Red Herrings":
Fire instills animal fear, is deep within our psyche. The prosecution
is playing on that fear with sensationalized imagery and conjecture,
making the prosecution's motive questionable.
Rod's ideology is unfairly on trial. They play up crimes in the past,
portraying him as a threat, rather than showing that his heart seeks
to protect the health of the earth and the animals.
We expect to side with law enforcement, because we are beholden to
them for our safety,yet they have proven unreliable at best in this
case. "The thin blue line has become a thick blue wall. What law
enforcement wants, law enforcement gets."
"The foundation of the criminal justice system is honesty, integrity,
candor and impeccability of law enforcement. They are the brick and
mortar we pay for and depend on. To err is human. We are not punitive
in our judgment of mistakes. Let us visit Detective Joseph Lehr. He
awoke early on August 1 to a devastating fire. He saw the ELF banner.
He was traumatized. Lehr went to Rod's talk that night, undercover.
He may have had anger, animus, may have lost clarity - officers are
not supposed to do these things. He knows the significance of words.
He puts in his report the words "bomb for an action." Heavy words. An
indictment of the individual. When caught, he admits to misstating
the words. Why are we here then? We would not be here without these
words. That was the case. This is s a great misstatement. This is a
tragedy. This is at a minimum a wanton disregard for the truth. This
is treason by a seasoned officer. If you measure in your mind the
potential harm to a society when a police officer grossly misstates
something that is at the heart of the case, isn't that something that
presents more potential harm than someone presenting the words of the
ELF or ALF? What is worse I ask you? The one has first amendment
protection; the other has the potential to be gross political
malfeasance. There will never be a more concrete, more dramatic form
of impeachment than this. Do not brush it off. It is unacceptable."
Addressing specific evidence from the Prosecution:
The undated letter seized from Rod's computer lauds direct action,
but ends with "My friends, I cannot tell you what you must do. Only
your heart can now do that." This is not a call to action. The San
Diego speech was also not a call to action.
In the 60 Minutes interview Rod says he is "asking people brave
enough to take the risks... " This is not a call to action. Likewise,
the American University does not cross the line by calling for
immediate violent action. Plus those are not what he is charged with,
but they were presented.
In addition to this history, Rod was under intense police scrutiny
for years. They knew where he was and what he was doing. They were
monitoring his speeches before and after August 1, 2003. There were
at least six police officers involved in monitoring his talk in San
Diego. At some point, it went to a Federal level. They were following
him, but he committed no crimes. What does the two+-year delay in his
arrest signify? He is clean. He wasn't arrested until 2006 - was it
merely a tactic to silence him? (Objection/sustained)
Remembering the words of Voltaire, "I disagree with what you say but
will fight to the death to protect your right to say it." This is a
terrifically important case. The two most beautiful words in the
criminal court are "not guilty." In a system where everyone is
guilty, that is the beginning of totalitarianism. In the American
way, we don't punish ideology, we punish crime.
Rebuttal by Prosecutor Skerlos:
One of the most beautiful things to me is the evidence. Cites the ATF
agent testimony about the destructive power of fire, and Detective
Lehr; for you the Jury to consider whether he is truthful. Case
boils down to the evidence of what he did and what he intended to do.
Suggests that Defense witness Kari Shaw, who testified about the
question she asked Rod, was in collusion with Rod to ask the question
for him to answer.
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