OF FIREBRANDS AND FILES
This is where you want your children to grow up.
It is clean. It is beautiful. It is peaceful.
On a Sunday afternoon in Prescott, the appearance of tranquillity is everywhere.
Just off the town square, the local sports tavern, Penelope Parkenfarker's, hosts a friendly full house as the Chicago Bulls blow out the Los Angeles Lakers.
At a nearby park, children tumble through the grass while parents pass covered dishes across wooden tables. The families gathered beneath the pine trees, however, have more on their minds than simple relaxation. This throng of quiet parkgoers is here to lend compassion to four Prescott residents who stand indicted in the Earth First! trial; if compassion is not necessarily approval, it is surely the warm embrace of one good neighbor to another at the beginning of a terrible ordeal in federal court.
Off to the side of the park there is a malignancy.
In an anonymous gray van, government agents videotape everyone at the picnic.
A man stands to speak, an older gentleman with neat silver hair who has traveled a good distance to be in this park, with these people.
Gerry Spence, the defender of Karen Silkwood against the nuclear energy establishment, the protector of Miss Wyoming against Penthouse magazine, rises to address the crowd. This attorney has journeyed from Jackson Hole, Wyoming, to represent the co-founder of Earth First!, David Foreman, the only one of the accused who is not from Prescott.
Spence has been forced to wallow through nearly 1,000 hours of conversations recorded by wiretaps, body bugs, microphones hidden in homes, undercover agents and paid informants. Yet he has not become cynical. Though his client is not from here, Spence will not suffer in silence this latest indignity upon the freedoms of those from Prescott who choose to assemble in the park.
He mocks the government's van. He holds the videotapers up to shame. He makes a record of the abuse by our government.
And make no mistake, in Prescott people can feel the pressure of intimidation.
One of the organizers of the neighbor-to-neighbor benefit, Margaret Antilla, said afterward that a woman wished to volunteer daycare for children of the indicted, but only if she could do so anonymously.
When nationally known environmentalist David Brower spoke at a fund-raising benefit, the hotel owner would only host the event if a disclaimer appeared on the announcement pointing out that the hotel management was not necessarily a supporter of Earth First!.
People in Prescott are both committed to their neighbors and frightened of their government.
So it is important and necessary for attorneys like Gerry Spence to speak out when the government oversteps. And Spence has been doing just that from the very beginning of this case.
On Tuesday, June 4, he was back in court hammering away in pretrial motions at the United States Attorney's Office.
The prosecutors have tied David Foreman into their conspiracy theory, in part, because of the man's book.
When David Foreman autographed two copies of his book Eco-Defense: A Field Guide to Monkey Wrenching and gave them to FBI informants, the government pointed to the act as proof of his part in the conspiracy.
Spence will not allow such an incredible approach to the First Amendment to pass without a fight.
At the conclusion of his argument, Spence returns to the defense table, where a flock of attorneys is gathered.
U.S. District Judge Robert Broomfield asks the lawyers to tell him who among them will speak first when the actual trial begins.
And then an odd thing happens.
A lawyer at the rear of the pack begins to offer an enormous grin up to the judge. While maintaining the loopy smile, the attorney points and wags his finger at Gerry Spence, simultaneously bobbing his head up and down like a grade-school pet who has been asked by the teacher, "Did you put this lovely apple upon my desk?"
The grinning, pointing and bobbing member of the bar is Wellborn Jack Jr., clearly a gentleman who has no doubt about Gerry Spence's God-given right to speak first.
There is, obviously, some logic in having the internationally recognized Spence lead the charge of the defense, but Jack's obsequious display in this gathering of professionals is an unsettling gesture.
The other attorneys in the case, understanding that their clients have interests at odds with Spence's, are not so childlike in their acceptance of the notion that it is Gerry Spence's role to automatically begin the critical opening statement to the jury. All the lawyers, even Jack, convene to discuss the matter.
People who toady up to others lead a schizophrenic existence. A lifetime spent on one's knees creates an insatiable appetite to control and demean those of lesser rank. And those who share equal status with bootlickers can expect treachery instead of civility.
The day after Spence argued his pretrial motion, a column appeared in this space that quoted FBI documents in the Earth First! case.
Frankly, the agency's own paperwork made the FBI look a trifle silly: One FBI informant, Kathleen Clarke, listened to an Earth First! speech by Ron Frazier and then told her superiors that the speaker appeared to be very "dangerous," a charming assessment since Frazier was at the time an FBI operative himself; an FBI agent, in the undercover role of "Michael Tait," went to an Earth First! demonstration, where he became fixated upon a rather hopeless hippie who was too stoned to make sense; yet another FBI agent, this one a supervisor, lost all grip on reality and told the court that the ragtag conspiracy within Earth First! could have triggered a nuclear meltdown in Phoenix.
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."
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?"
The man has other things on his mind.
To assist the clean firing of his synapses, Jack carries a portable computer with him everywhere. Unfortunately, the machine is dependent for its memory upon, you guessed it, Jack's memory.
Now, months later, Jack has told the court that he was concerned that anyone might have viewed the FBI file other than an attorney.
What was the difference between my looking at files in Jack's office and looking at files in Moon's?
In both instances, the operating principle was adherence to Rule 88, an understanding that one doesn't disclose anything that would risk a fair trial.
There was no difference.
There was only this: Between my visit to Shreveport and the Rule 88 motion by the prosecution, Moon and Jack began to have significant disagreements over the conduct of the case.
In my opinion, Wellborn Jack Jr. used the prosecutor's motion as a cover to push the disagreeable Moon out of the case.
When I mentioned to Jack that there had been no Rule 88 violation, that he could have easily attacked the prosecutor's position, he replied that it was up to the press to protect its own First Amendment interest.
It's not necessary for a lawyer to believe in a press that is free to print all the facts in order for that attorney to be effective in the courtroom. Nor is it even necessary to be a standup guy to do an effective job for your client. Many glib weasels are persuasive in front of juries. Certainly Wellborn Jack Jr. has the background, and even the credentials, to be a winning advocate. In his five-page, single-spaced letter of introduction to defendant Mark Davis, Jack demonstrated an agile wit able to move both the mind and the soul with passion.
But he also pointed out an interesting legal dilemma: " . . . It appears that there may be a certain amount of antagonism between Foreman's defense and the defenses of the other four defendants . . . ," wrote Jack.
It is unlikely that the prosecution can convict its principal target, Dave Foreman, based upon his book and the small amount of taped conversation that currently exists in the case.
The prosecution dearly wants Mark Davis to testify against Dave Foreman.
They are charging three counts that carry ten-year sentences and $250,000 fines each against Davis. The government is even in the position of being able to file additional charges. Yet Davis has refused all offers to give up Foreman in exchange for a lighter sentence.
But if the government nails Davis to the wall at the trial, will his attorney Wellborn Jack Jr. tell him that it is time to cut a deal if he ever hopes to see his children again? Will Jack put his client's interests above those of Jack's hero Gerry Spence?
Maybe Jack won't ever have to confront this situation because he'll walk his client. This is only one of many dramas that will play out during this summer.
Gerry Spence has marched through this case challenging the outrageous conduct of the government over fundamental issues of free speech.
When Wellborn Jack Jr. was presented with the same opening, he chose instead to attack his co-counsel and promise the court that he, Jack, knew how to behave.
Under these circumstances, Wellborn Jack Jr. will always be the lawyer in the back of the room, bobbing his head up and down and pointing with envy toward Gerry Spence.
To be continued
People in Prescott are both committed to their neighbors and frightened of their government.
A lifetime spent on one's knees creates an insatiable appetite to control and demean those of lesser rank.
Davis was an endangered species, a man of convictions on the verge of extinction.
Jack, dear soul that he is, can't remember if he's wearing loafers or lace-ups.
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