OF FIREBRANDS AND FILES

If these items are mildly critical of the FBI, they are mere seaweed upon a tidal wave of publicity that has pictured the indicted members of Earth First! as terrorists.

Nonetheless, the U.S. Attorney's Office could not brook even this small deviation from the government's theme.

Within 24 hours of the column's appearance, deputy U.S. Attorney Roslyn Moore-Silver filed a motion with the court demanding a hearing and stapling the offending editorial to her paperwork.

Someone, claimed Moore-Silver, some defense lawyer, spoke to Michael Lacey and leaked the FBI documents in violation of Rule 88.

Well, of course some defense team gave me the paperwork. You don't think the FBI was going to give it to me, do you?

Moore-Silver's motion was absurd.
Of course, you'd expect me to say that.
The newspaper's editor, however, is something of an expert on Rule 88.

An attorney himself, our editor represented until eight months ago the First Amendment Coalition of Arizona and members of the press nationally. Before joining New Times, he briefed the federal courts on the application of Rule 88, the regulation that governs conduct between reporters and attorneys. If anything, this gentleman is all too respectful of people who make a living in black robes; he simply would not violate the court's standards by printing a violation of Rule 88.

Though Moore-Silver's motion was silly, it was also dangerous.
Had it been successful--it was not--she might have effectively bottled up the coverage of the case, intimidating defense attorneys and their clients from discussing that which is clearly permissible. This would have given the government over two years' worth of press coverage in which the prosecutors' indictment and the FBI's paperwork portrayed the defendants as "saboteurs."

And now, as the tapes and files finally surface to offer another perspective, here's Roslyn Moore-Silver screaming foul.

Well, does the appropriate attorney rise and say to the court, "Your honor, this is a gross misinterpretation of Rule 88 by the prosecution and a heavy-handed attempt to stifle our ability to defend our client."

Hell, no.
Instead, Wellborn Jack Jr. tells the judge that his co-counsel, Don Moon, is responsible for whatever New Times printed and that he will deal with Moon.

This is a stunning development on a number of levels.
The first FBI document ever given to me was presented with the invitation to review the entire FBI file.

The invitation was extended by Wellborn Jack Jr. in Jack's Shreveport, Louisiana, office. The file was spread out on a large conference table, and it was at that moment in Jack's office that I first read Kathleen Clarke's FBI memo regarding the "dangerous" Ron Frazier, a fellow FBI informant.

At this stage of the game, Jack was new to the case and still eagerly formulating various defenses. He had joined the Earth First! team late, after writing a letter to defendant Mark Davis and Davis' then-counsel Richard Eiden that began: "From two directions--my new friend Sam Guiberson in Houston and my old friend Gerry Spence in Jackson [Hole]--I have heard that you are defending a man who took seriously a [sic] old cause dear to my heart. I'd like to help you pro bono."

Jack joined the defense team and soon Eiden was gone.
In Shreveport, I considered Jack's invitation to sit and review the files. It was tempting. But after ascertaining that Moon had virtually the same set of paperwork in Phoenix, I opted to spend the afternoon with Moon and Davis. After all, Davis was a man who had chosen off the nuclear power industry, the FBI, the United States Attorney's Office and all of the industrial might that violated his beliefs in Mother Earth. He was an endangered species, a man of convictions on the verge of extinction.

What would you have done?
Last Thursday, Wellborn Jack Jr. told me he had a "profound disagreement" with my recollection of events in his office.

This could mean: I'm a liar; Wellborn Jack Jr. is a liar; one of us is suffering from that premature Alzheimer's going around that affects the memory.

As far as my memory goes, I can tell you this:
The only document that Wellborn Jack Jr. ever tried withholding from me while I was in Shreveport was a letter from Gerry Spence to Judge Broomfield. It's a playful note in which the Wyoming lawyer "aw shucks" his way around the embarrassment of having addressed the judge by the wrong name in previous correspondence.

Jack didn't want me leaving Shreveport with Spence's letter. He wanted it back. Jack didn't want Spence embarrassed in any way that could be linked to his office.

As for Jack's memory, you don't have to be around his friends, family or colleagues, as I was, for very long before you start hearing that Jack, dear soul that he is, can't remember if he's wearing loafers or lace-ups.

In court last week I watched one of Judge Broomfield's efficient administrators tell Jack that she had something for him.

With that, she handed Jack an envelope.
He thanked her, took the envelope and then said to her, "You've got something for me?"

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