Our September 2009 newsletter highlighted the case of Briana Waters, as well as her separation from her four-year-old daughter, Kalliope. Despite maintaining her innocence, Briana was convicted of conspiracy to commit arson and sentenced to six years in federal prison.

The Judge had recommended that she be imprisoned on the West Coast so she could be close to her young daughter, but in its wisdom the Bureau of Prisons incarcerated her 3000 miles away in Danbury, CT. Grants from the RFC’s Attica Prison Visit Program have enabled Kalliope to visit Briana during the first two years of her confinement.

In a surprising turn of events, last week the Ninth Circuit Court of Appeals overturned Briana’s conviction. In a unanimous decision by a three-judge panel the Appellate Court cited several grounds for its decision that “Waters’ trial suffered from a number of [reversible] errors.” I will focus on one issue that illuminates how conservative judges in collusion with authoritarian prosecutors are stacking the deck against activist defendants.

The government said Waters acted as a lookout for an Earth Liberation Front (ELF) arson. Waters’ main defense was that she opposed the tactics of the ELF action because it threatened human life and she was a non-violent person who did not wish to hurt anyone.

Over Waters’ attorney’s objections, the government introduced into evidence a folder containing articles advocating the violent destruction of all society. Waters acknowledged giving the folder to her alleged co-conspirators, who were now testifying against her in exchange for leniency, but swore the articles it contained when she handed over the folder were about “women and activism and vegetarianism.” The appellate court noted that while Waters’ fingerprints were on the folder, they were not on the articles advocating violence.

Moreover, the court noted that the prosecutors emphasized the content of the articles to the jurors even though they had not tied them to her adequately. The appellate court concluded that the trial court judge erred in admitting this material into evidence.

The three justices also pointed out that the trial court judge compounded his error by refusing to allow Waters to introduce a film she’d made of a successful effort to defend a grove of old growth redwood trees by using creative non-violence. In other words, the trial court judge allowed the government to introduce material advocating violence that was not clearly tied to Waters, but refused to allow the defendant to present material she herself created that advocated non-violence. It doesn’t take an experienced lawyer to figure out that by skewing the evidence in this manner the trial court judge enhanced the prosecution’s case while crippling that of the defense.

Waters won this round, but the news isn’t all good. The Ninth Circuit Court of Appeals is the most liberal of the federal appellate courts, and the panel included two of its most liberal members. I have little doubt that most of the appeals court justices in other circuits would have had little difficulty in finding there was nothing wrong with the evidentiary rulings I described above.

In most other circuits Briana wouldn’t have had a chance of overturning her conviction even though, for the reasons described above as well as several others, she did not receive a fair trial. Our federal judiciary now is chock full of very conservative judges who will do their best to have as many progressive militants locked up as possible.

Finally, you may wonder what Briana faces now. I received an email on September 15th from the Friends of Briana Waters (http://groups.google.com/group/brianaproxy2?hl=en), which stated: “The case basically returns to its pre-trial state. Briana is still accused of these crimes … and could potentially face re-trial. Her status as a prisoner should likewise return to the pre-trial state meaning hopefully she will be released on bail in the near future.” As of today Briana remains in prison. People who wish to keep up with breaking news on her case could join the discussion group listed above.

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