Appeal filed as trial looms in pepper spray Q-tip suit

APPEAL FILED AS TRIAL LOOMS IN PEPPER SPRAY Q-TIP SUIT

"This case should no more be tried in Eureka than a civil rights trial in 1965 should have been moved to Selma, Alabama."
--argument in appeal petition.

The Headwaters Defense vs Humboldt County legal team filed an emergency appeal May 6 to try to keep the retrial in their civil rights suit in San Francisco rather than Eureka, where it is set to begin next Monday, May 12. 2003. The appeal also seeks to remove U.S. District Judge Vaughn Walker from the case for bias. Meanwhile, since it is unusual for the appeals court to issue a stay order in a civil suit, the activists/plaintiffs and their legal team are preparing for trial in Eureka before Judge Walker.

In an emergency motion to the U.S. 9th Circuit Court of Appeal, the attorneys wrote:

"Plaintiffs respectfully request that this Court intervene swiftly, in order to prevent a miscarriage of justice and a waste of everyone's resources, and direct the district court to return the trial to San Francisco, the site chosen by plaintiffs in order to avoid the very prejudice they now face. In addition, plaintiffs request that the Court order the case to be reassigned to a different district judge, in order to curtail his actual and apparent bias, manifested by a series of rulings which have no rational purpose except to ensure plaintiffs' defeat, and thereby vindicate his dismissal of the case in October 1998, after the first jury deadlocked, before he was firmly reversed by this Court. Plaintiffs are eager to begin the retrial of this case, but only if they can hope to actually resolve it, before a fair and impartial jury. The course set by the district judge, however, portends an unfair trial and another appeal."


Following is the text of the introductory sections of the petition filed Tuesday, May 6, with the U.S. 9th Circuit Court of Appeal in San Francisco. In this plain text abridged version the footnotes and formatting are omitted. The full text version in legal format is available as a PDF file on the legal documents index page at http://www.nopepperspray.org.

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PETITION FOR WRIT OF MANDAMUS AND EXERCISE OF SUPERVISORY AUTHORITY

ISSUES PRESENTED FOR REVIEW

I. Whether the district judge has abused his discretion, and violated plaintiffs’ Seventh Amendment right to a fair trial, and Fifth and Fourteenth Amendment right to due process, by sua sponte [legal Latin: on his own initiative] transferring the re-trial from San Francisco, a neutral place, to Eureka, where there is pervasive hostility toward plaintiffs and their movement?

II. Whether the district judge is biased, and/or appears to be biased against plaintiffs, requiring that the case be reassigned to a different judge?

RELIEF SOUGHT

Petitioners request that this Court issue a Writ of Mandamus, or otherwise intervene and direct the district court to:

1. Return the trial, scheduled to begin May 12, 2003, to the neutral site of San Francisco, where the first trial occurred, the case and all subsequent papers have been filed, and all hearings have been conducted; and

2. reassign the case to a judge other than Judge Walker.

SUMMARY OF THE ARGUMENT

Plaintiff-petitioners are environmental activists who were injured by the cruel misuse of pepper spray by law enforcement officials during a series of anti-logging protests. They seek extraordinary relief from this Court, in order to prevent the impending retrial of their case on May 12, 2003 from becoming an exercise in futility, by virtue of the district court’s abuse of discretion in moving the trial from San Francisco to Eureka. There was a hung jury in the first trial in San Francisco — part of a history well known to this Court by way of its double reversal of the district court, leading to the instant remand. Now, the district judge, the honorable Vaughn R. Walker, plans to hold the re-trial in the very location where the wrongful, essentially sadistic use of pepper spray occurred — a community seething with active, current, overt hostility toward the plaintiffs and their Earth First! colleagues.

Plaintiffs believe there is great likelihood of another hung jury in Eureka; there is also a real threat of dishonest responses from jurors who may seek to help defeat the plaintiffs and/or avoid the disdain of their friends and family who harbor an intense dislike of the plaintiffs and their efforts to protect the Redwoods from clear-cutting. As the Court can see from the eight declarations, fifteen press clippings, two print ads, two press releases, and videotape of a television ad by Pacific Lumber Company equating environmentalists with terrorists, there is in Eureka just now exactly the type of atmosphere which generally prompts courts to move a trial AWAY from a particular place. To move a trial INTO such a battle zone is unheard of, and simply unfair. Plaintiffs request that this Court assert its supervisory authority, in the form of a writ or other direction to the Court below, to prevent a miscarriage of justice, and to keep the district judge from making the retrial a vehicle for vindication of his own viewpoint on the merits of the case.

Plaintiffs do not say this lightly. They have sought recusal of the district judge, on grounds that he has resolutely taken sides against the plaintiffs, and reconfirmed the bias demonstrated in his October 1998 Order dismissing the case, resoundingly reversed by this Court, in two recent decisions: (1) his decision to move the trial to Eureka for no legitimate reason, and (2) his stated intention to present the thrice-decided issue of qualified immunity to the jury, despite a total lack of legal authority, inviting jurors to cancel out any finding they might make in plaintiffs’ favor. With trial just one week away, the undersigned pray for swift intervention by this Court.
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The above is only the introduction. For the full petition in legal format with case history and full arguments and case law citations please visit the Legal Documents Page at http://www.nopepperspray.org

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