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WHAT THE EVIDENCE WILL SHOW

In Washington, D.C., a gentleman boards a jet and flies across the country to Arizona. This man is a lawyer from a city of lawyers. He is Mr. Daniel Fromstein, a prosecutor with the Department of Justice of the United States.

Once in Phoenix, Fromstein must drive from the floor of the desert to the mile-high pine country of Prescott for opening arguments in the Earth First! trial. His presence at the prosecutors' table on June 19 is unusual.

"This case is a very significant case in the justice department. It is being monitored by the director of the FBI," explained Ivan Matthew, a former assistant United States attorney in Phoenix. Prior to entering private practice, the Earth First! case was Matthew's. "The resources in this case, the FBI personnel, the surveillance, the prosecutors, undercover operations, tape recordings, transcripts of tapes, the sheer volume of the tapes indicate it's not an ordinary case."

To get to Prescott, Mr. Fromstein had to follow the signs that pointed out his way: Desert Hills, Squaw Valley, Black Canyon City, Sunset Point, Crown King, Bloody Basin, Rock Springs, Horse Thief Basin, Big Bug Creek, Deadman's Wash.

These landfalls off the highway were not named by attorneys.
On his journey, Mr. Fromstein must pass men pulling horse trailers and women driving pickup trucks. He will share that highway with families in vans, vehicles piloted by men with long hair and women without makeup, couples who are surrounded by children who already know stories about coyotes and jack rabbits the way some kids in Washington know stories about Marion Barry. In his conservative pinstriped suit and with his briefcase nearby, Mr. Fromstein will be stuck behind retirees in their slow-moving Winnebagos, the elderly in open collars who have migrated here from all over the country. And all of these people, even Mr. Fromstein, will look out their windshields and see the same thing. They will see stands of saguaro, a stately cactus that grows nowhere else in the United States. They will take in vistas unknown to those who dwell in the nation's capital.

The sweeping views are only interrupted by enormous transmission lines.
Mr. Fromstein has entered a place where the land itself can shape the values of the people who live upon it. He has come to Prescott to put such a man in prison.

David Foreman is that man.
Once, many years ago, David Foreman also worked in Washington, D.C. He knew the Fromsteins of this world; he was, in fact, surrounded by lawyers because Foreman was a lobbyist for the Wilderness Society. In his job, Foreman discovered the thing that drove the lawyers; he found the value that shaped people in the nation's capital was the spirit of compromise.

Foreman also discovered that when it came to the wide-open space he cherished, he was no longer capable of compromise.

So Foreman left Washington, D.C., and while sitting around a campfire with friends began to fantasize about an environmental organization that would not compromise. Thus was born Earth First!

In Prescott, the government has charged Foreman and four others, Mark Davis, Ilse Asplund, Margaret "Peg" Millett, and Marc Baker with a conspiracy to sabotage nuclear-power plants. It is also alleged that various members within this circle attacked the Canyon Mine uranium operation on the South Rim of the Grand Canyon and repeatedly vandalized the Fairfield Snow Bowl ski resort near Flagstaff.

The defendants have assembled an intimidating array of legal talent.
Foreman is protected by America's most famous criminal attorney, Gerry Spence. Often pictured in his buckskin jacket, Spence created a legend in his representation of defendants like Karen Silkwood and Imelda Marcos. He is joined by co-counsel Sam Guiberson of Houston. Arguably the country's top legal mind regarding tape-recorded evidence, Guiberson was part of the defense team that walked Cullen Davis in the infamous Texas homicide case that became the basis for the book Blood and Money by Jack Thompson.

Mark Davis is represented by Wellborn Jack Jr., a nationally recognized defense attorney from Shreveport, Louisiana, with a reputation for winning impossible cases.

Margaret Millett is defended by Phoenix litigator Michael Black. A former prosecutor of major drug cases in Florida, Black has a reputation for being a hard-nosed iconoclast who suffers little foolishness from either prosecutors or judges.

Marc Budoff, who represents Ilse Asplund, formerly was a top prosecutor with the Maricopa County major-felony division, and is described by other lawyers as having "significant presence" in the courtroom.

Alfred "Skip" Donau may, in fact, be the toughest lawyer in the Prescott courthouse. He is ferocious on his feet, a reputation earned as he protected the interests of the notorious Joseph Bonanno family in Tucson.

While Daniel Fromstein sits at the prosecutors' table, this is not his case to strategize. His job is to report back to Washington, D.C., to keep tabs. The government's case is being handled by Assistant United States Attorney Roslyn Moore-Silver. She is the one who must counter the incredible legal throw-weight assembled on behalf of the defendants.

 

And who is Roslyn Moore-Silver? Who is this woman that must stand up to the pressure that will be generated by Spence, Guiberson, Jack, Black, Budoff, and Donau? Who is the prosecutor who will carry forward the multimillion-dollar investigation that is almost four years old and viewed by senior prosecutors in Washington, D.C., as an opportunity, the very best opportunity, to bust wide open the radical organization Earth First!?

Those who enjoy a good smirk tell you that when the heat was on, she was a woman who passed out in the courtroom.

The story is repeated by those who suspect that when the pressure inside the Prescott courtroom becomes unbearable, as it must, that Roslyn Moore-Silver might just pass out again.

The man who was present when it happened is a reluctant witness.
"There was a podium and usually both counsels stood with the defendant between them. Roslyn was arguing and I was waiting my turn to respond as to why the sentence should not be so severe," recalled Louis A. Arreneta, today a court commissioner but at the time of the incident an assistant federal public defender.

"All of a sudden there was a large thunk. She hit her head on the podium and passed out. I bent over her to see if I could detect a breath. For a very brief moment, I gave her mouth-to-mouth resuscitation."

Unsure of how this will look in print, Commissioner Arreneta adds, "The judge wrote to my boss that I behaved like a perfect gentleman." As a matter of fact, when Moore-Silver fainted, it had less to do with pressure than with blood sugar. But the tale keeps its shelf life because it colorfully, if facetiously, underscores a criticism of the prosecutor: She is so rigid in her approach that she will rattle if the game plan is altered.

For example, Roslyn Moore-Silver led the third prosecution of Neal Roberts, the downtown fixer linked to the homicide of reporter Don Bolles. In opening arguments, the defense no longer contested a point that had been critical in the first two trials. Nonetheless, Moore-Silver was so locked-in to arguing this issue that she proceeded to do just that, confusing the jury and finally losing the case. She was too inflexible, say her critics, to adjust to a shifting theory of defense.

And so, if Moore-Silver is subject to a certain "unconsciousness" in the face of ordinary litigation tensions, her larger-than-life antagonists in this prosecution might well trigger a coma.

So go the predictions of the spectators who've waited in hand-rubbing anticipation for this legal showdown.

In the highly competitive world of criminal attorneys, however, where an anecdote like her courtroom collapse is savored, it would be a mistake to think this decade-old chestnut sums up Roslyn Moore-Silver.

"She is one of the best-prepared lawyers that you will ever see go to trial," observed Matthew. "She is very methodical and has an excellent command of the law. She is a perfectionist."

One of her adversaries, Michael Black, described her as very bright: "In terms of pure IQ, she can put the numbers up on the board."

And from the very beginning, she has demonstrated a willingness to bust kneecaps in this case.

Shortly before opening arguments were scheduled, she filed a motion with the court that said to Gerry Spence: "Hey, you in the buckskins, you try any of your macho nonsense in my courtroom and I'll pin your ears."

On May 6, Moore-Silver filed papers asking the judge to constrain the legendary barrister from Wyoming: "The government has a heightened concern with respect to any opening or closing argument that Gerry Spence, co-counsel for defendant David William Foreman, may present."

In support of her position, Moore-Silver attached the entire transcript of both the opening and closing statements of Spence in the infamous Imelda Marcos case, noting for the court that the judge in that case sustained objections against Mr. Spence's two arguments an astounding 31 times. (Mr. Spence achieved an acquittal for his client.)

On June 19, the Prescott courthouse is packed. United States marshals screen everyone and x-ray all packages before anyone is admitted into the trial. Media from across the country have assembled in the elegant and restored building. The attorneys are tight with adrenaline.

Roslyn Moore-Silver rises to address the jury. She has an enormous flip chart mounted upon an easel with words handwritten across the pages to create lasting visual impressions with the jurors.

 

Moore-Silver introduces FBI supervisor Lori Bailey, who is assigned to the demeaning task of turning the pages of Moore-Silver's chart.

Agent Bailey exhibits the stoic deadpan of the field hockey captain who never saw anything funny about her sport. When Moore-Silver introduces the grim-faced Bailey to the jury as her Vanna White, the levity is humorous though certainly not in the way Moore-Silver intended.

It does not matter that Moore-Silver is no Lily Tomlin. She quickly moves past any attempt to win over the jury on a personal level. Almost immediately she begins to slash into the defendants.

"This is not a complex case," she tells the jury. "This case is about monkey wrenching, the damage and destruction of private property."

Quickly, she portrays the defendants as extremists who want an environment that they will dictate to others.

When business or government or individuals do something the defendants disapprove of, Moore-Silver tells the jury that the Earth First!ers are elitists who take the position: either you get out of our environment or we will damage and destroy your property.

At the very beginning, the flip chart reveals to the jury the word, "Terrorism."

A defense team consultant privy to voting patterns and polling data in Yavapai County from which the jury was selected has already warned that if the defendants can be tagged with the identity of terrorists, and if the label sticks, they will all go to jail.

Moore-Silver portrays Foreman as a "preacher," a power behind the scenes who "pumped people up" and financed their sabotage.

Mark Davis is called the "mastermind" who led the warriors of Earth First! while Millett, Asplund, and Baker were "true believers."

Ski-lift towers at the Snow Bowl were twice damaged with a cutting torch and power lines leading to the Canyon Mine were cut.

Moore-Silver described the attitude of the defendants after the attacks. "It was malicious and gleeful."

Referring to the voluminous tape recordings made by the FBI, Moore-Silver tells the jury, "These defendants are prisoners of their own words."

The jury is shown pages from the flip chart with quotes from the defendants:

"Ultimate dream seeing all those . . . all those chair-lift cars crashing downhill"--Marc Baker.

"This all has such a comic effect . . . it was wonderful. It was fabulous," and referring to the toppled power lines at Canyon Mine, "We saw this incredible arc of light."--Peg Millett.

"I want to get the Snow Bowl again but not for a while" and "I'm gonna blow the Canyon Mine and knock over the head frame."--Mark Davis.

Emboldened by their successes, larger plans were hatched that the prosecutor said included the sabotage of nuclear-power plants. Again, the jurors were shown portions of FBI transcripts: "A plan is afoot to get maybe five different nuclear-power plants simultaneously."--Peg Millett.

"Five or six plants. I mean we'll go for whatever we can do. If Palo Verde is all that can be done, plus a couple of places in California . . . yeah, well, like Diablo Canyon . . . yeah, Diablo Canyon and then maybe Rocky Flats."--Mark Davis.

"I don't see this as being a one-shot deal. I see it as being something where everyone goes completely underground for six months or whatever, you know, but then. . . . "

"Do it again," said Ilse Asplund, finishing Davis' thought.
Referring to $580 that Mark Davis picked up following a meeting with Dave Foreman, Millett is taped saying, "It's personal money we're getting from Dave's personal account. He can't do anything because he's under surveillance all the time. So he's very happy to know that there are other people out there doing this stuff."

As FBI agent Michael Fain drove Mark Davis, Peg Millett, and Marc Baker into the desert on May 30, 1989, the tape recorder was running. The quartet was on its way to a Central Arizona Project transmission line that it intended to cut down as practice before striking the transmission lines at the Palo Verde nuclear plant.

Shortly before the group was arrested, Mark Davis said, "If the nukes go good, we're going to hit Foreman. I'm going to go talk to Foreman and hit him for $10,000."

Moore-Silver portrayed the indicted as extremists opposed to all businesses that weren't health-food stores. And when they disagreed with something, they set out to destroy it.

The damage they inflicted was no mere vandalism, like spray-painted graffiti. The environmentalists caused tens of thousands of dollars of destruction and forced the owners of the ski resort and the mine to spend more than $100,000 each in additional security to make it too expensive for the businesses to remain open.

 

"They believed they were the law," concluded Roslyn Moore-Silver.
The government's tapes are explosive. The question is, how did they get them.

The incriminating conversations were obtained initially by Ron Frazier and ultimately by Michael Fain.

Moore-Silver told the jury that Frazier volunteered his services as an informant because he was offended by the way that Mark Davis took credit for the Snow Bowl sabotage. She also said that Frazier was frightened into becoming an informant after Davis threatened him.

The prosecutor admitted to the jury that they paid Frazier for his information and when Frazier "fell out of favor with Davis," the government sent in an FBI agent, Fain, whom she described as an ardent environmentalist.

The defense contends that both Frazier and Fain were provocateurs who egged on the indicted, providing the inspiration, the know-how and the wherewithal to commit the crimes. And this effort was orchestrated with an eye toward crippling Earth First! by crippling Dave Foreman.

Mike Black, representing his client Margaret "Peg" Millett, spoke first for the defense.

Black has an air of ruthlessness in the courtroom enhanced by Jack Nicholson eyebrows.

"Government conduct created these crimes," Black told the jury. "Your acquittal will set the tone for what citizens will allow the government to do."

He reminded the jury that the reason people place their hands on a Bible and raise their right hands before God is that witnesses often don't tell the truth.

"Two of the government's witnesses have lied under oath," promised Black.
Describing Frazier as a lifetime abuser of marijuana, LSD and peyote, Black said the government's star witness shot at a van loaded with people in Bisbee, Arizona, and that he'd threatened a woman in Prescott.

Referring to Fain, he said the FBI agent engaged in "insidious, psychological techniques" to seduce the emotionally vulnerable Millett.

Fain portrayed himself as an abused child, a recovering alcoholic, a troubled Vietnam veteran and the product of a dysfunctional family, said Black, and you, the jury, will be repulsed by the behavior of the FBI agent.

At numerous critical junctures, Frazier and Fain both had mysterious mechanical problems with their recording equipment, said Black. Unable to play the conversations, we must rely upon their written summaries.

And both men are liars, said Black.
When Marc Budoff stood on behalf of Ilse Asplund, he told the court that they must remember the phrase, "Send a message."

Budoff was referring to Fain's accidentally recorded remarks when he told another FBI agent that they had to "pop" Dave Foreman, guilty or not, in order to "send a message."

Budoff, who presents an image of urbane tranquillity in contrast to the roughhouse manners of Moore-Silver and Black, offered an easily grasped metaphor to the jury.

He said the case was like the picture on the cover of a jigsaw puzzle box. The government had a picture of the puzzle in its mind, and through the efforts of Fain and Frazier, it set about gathering and manufacturing the pieces to make the puzzle fit.

Perhaps the most accomplished opening argument was offered by Wellborn Jack Jr., on behalf of Mark Davis.

His manner is courtly, reassuring. He told the jury that his client was "a good decent man, a truthful man, an honest man," a cabinetmaker who named his business, "The First Noble Truth Woodworking."

Jack went on to explain how frustrated Davis was by the despoiling of the environment and that he shared that frustration with Ron Frazier.

Frazier let Davis know what could be done about the desecration of the San Francisco Peaks that were sacred to the Indians, said Jack.

Mark Davis did not know how to use a cutting torch. Frazier taught him how. Frazier drove Davis to three different supply houses in Phoenix to purchase the equipment.

The attack on the Snow Bowl was "a crazy scheme," said Jack, and "but for the instigation and inspiration of Ron Frazier, it would never've been done."

Mark Davis, said Jack, was all "talk and thought without government prodding.

"They worked on him, appealed to his manhood and worked through the women he knows and loves," observed Jack.

When Jack sat down, you could sense the outline of a defense for a man who courtroom insiders had assumed was in a hopeless position.

If you have watched any important criminal case, you quickly learn that opening arguments are presentations that attorneys invest with phenomenal preparation. Careful analysis of jurors' statements after trials have convinced lawyers that the opening argument is the single most important element in any case.

 

Consider then the extraordinary tactic of "Skip" Donau.
Donau abandoned whatever statement he'd labored over in the previous months.

When he stood, he seized Moore-Silver's very own flip chart. Page by page he went through the prosecutor's props and explained how these words simply did not apply to his client, Marc Baker.

Pointing to the chart that read "monkey wrenching," Donau told the court that when the government alleges the conspiracy began, his client was in the Amazon studying plants.

When the chart quoted Dave Foreman at an Earth First! rally, Donau explained that his client was not at the rally, did not know Dave Foreman and was not a member of Earth First!

Turning to the page that quoted the title of Foreman's controversial book, Eco-Defense: A Field Guide to Monkey Wrenching, Donau said Baker had not read the book and did not own a copy of it, as the government's own search of his client's home demonstrated.

The fully bearded Donau took personal exception at any interruption by the prosecution, cutting them a look that could have severed the pylons on a ski lift. His performance was enough of a virtuoso display that you almost forgot that his client was arrested at the base of a transmission tower as Mark Davis attempted to cut through it with a torch.

When Donau sat down, Gerry Spence rose.
The courtroom was elbow-to-elbow and many of these people were there simply to hear this attorney.

Spence is a large man who does not so much stand at the podium as he overwhelms it. His voice is as resonant as the most persuasive deacon's; it is a voice meant to be listened to with pleasure.

He reviews Moore-Silver's labels in the flip chart: terrorists, radicals, fanatics, extremists, eco-tage.

This is not evidence, he says, it is name-calling.
It is the sabotage of fair minds. It is "psychotage," an effort to "poison our minds."

Spence begins by explaining to the courtroom who Dave Foreman is.
Roslyn Moore-Silver objects immediately.
Spence continues, adding that Foreman taught Head Start on the Zuni reservation.

Though he is supposed to confine his remarks to the evidence, Spence continues to stretch the issue by painting a portrait of his client.

Spence gives no sign of having read the prosecutor's "Imelda Marcos motion" on opening and closing arguments.

Roslyn Moore-Silver erupts with a string of objections like a stutterer lost in Peter Piper Picked a Peck of Pickled Peppers.

As Spence recounts FBI agent Fain's visits to Foreman, you can see the attorney putting his arm around the jury and explaining everything in simple terms anyone might understand.

The $580 was for the Yavapai Earth Net, a legitimate telephone network Davis had attempted to launch in Prescott.

Spence points out that the FBI recorded everything and yet this critical conversation is not recorded. We are expected to take undercover agent Fain's word.

A second conversation between Fain and Foreman was recorded by an airplane that circled over the heads of the two men. In this conversation, Spence repeatedly points out where Foreman attempts to dissuade the FBI agent: Just drop the plan . . . I am not a part of this . . . You don't get support for your movement by frightening people . . . This is a hell of a risk for something where the message is unclear.

Spence grabbed a chalkboard to sketch out a time line of the events. Though he stumbled through the presentation, even getting the dates wrong, he finally finished his rough graph.

He demonstrated that the first Snow Bowl incident happened in October of '87, the Canyon Mine in September of '88 and the second Snow Bowl occurred in October of '88.

David Foreman would not meet Mark Davis for another fourteen months, in December of '89.

Not much of a conspiracy, said Spence.
The day after Fain's final visit with Foreman, the FBI agent taped a call between Davis and the co-founder of Earth First!.

Spence quoted Davis as saying to Foreman, "We've got to have some discussion about targeting philosophy."

In other words, said Spence, "They don't agree."
Spence argued that the only reason Foreman was indicted was because of who he is, what he has written, and the movement he inspired.

"A valuable member of our society has been singled out to be silenced," said Spence.

Dave Foreman wanted no part of attacking Palo Verde's transmission lines.
Nor did he want any part of attacking the Central Arizona Project transmission lines two weeks after that final telephone call, said Spence in conclusion.

 

By the time Gerry Spence finished, you might have been excused if you left the courtroom thinking that no one, at no time, wanted any transmission lines cut down anywhere.

And we know that isn't true.
In fact, all of us, with the possible exception of Daniel Fromstein, want the transmission lines, all of them, taken down. You cannot make the drive from Phoenix to Prescott, if you have any soul at all, without taking offense at the intrusion of the massive transmission towers that bisect the high-country plateaus. But that's just a fantasy.

The reality is that on May 30, 1989, Mark Davis, Margaret Millett, and Marc Baker were gathered at a CAP power line with cutting torch ablaze.

The question this trial must settle is how they got there.

To be continued

Foreman discovered that when it came to the wide-open space he cherished, he was no longer capable of compromise.

The defendants have assembled an intimidating array of legal talent.

Alfred "Skip" Donau may be the toughest lawyer in the Prescott courthouse.

"All of a sudden there was a large thunk. She hit her head on the podium and passed out . . . "

"Hey, you in the buckskins, you try any of your macho nonsense in my courtroom and I'll pin your ears."

Moore-Silver portrayed the indicted as extremists opposed to all businesses that weren't health-food stores.

Black has an air of ruthlessness in the courtroom enhanced by Jack Nicholson eyebrows.

Not much of a conspiracy, said Spence.


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