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SAN DIEGO (AP) -- A federal judge declared a mistrial Wednesday in the case of a radical environmentalist who was charged with teaching others how to make Molotov cocktails.
Rod Coronado gave his demonstration only a few hours after a $50 million arson fire in August 2003 destroyed an unfinished condo project nearby in an apparent attack by environmental terrorists.
Jurors deliberated two days before sending a note to U.S. District Judge Jeffrey Miller indicating they were deadlocked. The judge quickly declared a mistrial after the jury foreman said the panel was unlikely to reach a unanimous decision, even with additional time.
Coronado, 41, was charged in February 2006 with a single count of
distributing information on explosives, destructive devices and weapons of mass
destruction with the intent for his listeners to
September 19, 2007
Contact: Karen Pickett 510-548-3113
Attorney Jerry Singleton 619-405-3056
Hung Jury in Favor of Acquittal in Rod Coronado Free Speech Case
San Diego, Calif.-After more than two full days of deliberation, a 12-person jury informed Judge Jeffrey Miller they were hopelessly deadlocked and determined that further deliberation would not deliver unanimity. Outside the courtroom, attorneys were informed that the majority was voting for acquittal of the environmental and animal rights activist on trial for a speech he gave in San Diego in 2003. In order to convict under the obscure statute, (18 USC � 842 (p)(2)(A)), which makes it a crime to demonstrate how to build a destructive device with the intent that it be used in furtherance of a crime of violence), the jury would have had to determine on three criteria: that his speech was instructive, that he had intent to incite those present to violent action, and that the incitement was to imminent action. Otherwise, such speech is protected under the First Amendment. A status conference was scheduled for September 28 in the same court to determine whether the case will continue. Rod Coronado is headed home to Tucson, Arizona with his wife to reunite with his children and return to his job.
Omar Figueroa, an attorney on the legal team said, "We had a good jury and they upheld the Constitution. It's a great day for Constitutional Rights."
Attorney Tony Serra, also part of the legal team said, "If these prosecutors opt to re-try this case, then they are the puppets we know they are, in the business of suppressing Constitutional rights. We hung the jury probably 10-2 or 9-3 (that specific information was not available from the jurors), so we know they can never win. So they would be fools to retry, but this is political and their agenda is political. If they re-try, we will win again."
Attorney Jerry Singleton reminded those present that Coronado has not been an advocate of direct action since 2006, and in fact renounced the type of direct action he formerly participated in, and is opting instead to work on building sustainable communities with his family.
[San Diego CityBEAT]
Tony Serra is a defense attorney straight out of central casting: hunched a bit by age; long, wispy gray hair not completely under the control of a ponytail band; necktie askew; theatrical hand gestures and singsong speaking style. He took nearly three hours to give a closing argument that could have been delivered in about 45 minutes.
But on Monday afternoon, he posed a vitally important question: "Why are we
Coronado, who served roughly four years in prison for torching a number of
fur farms and has sunk whaling vessels in Iceland, flew in to San Diego on Aug.
1, 2003, to speak to a public gathering about his experiences as a very active
activist, just hours after other very active activists burned a large condo
complex nearing completion in University City to the ground. A banner was found
at the scene, reading: "If you build it, we will burn it. The ELFs are mad." ELF
is Earth Liberation Front, one of several hard-line environmental groups with
which Coronado has worked.
He could, and he did--not one but two types of devices, an elaborate one that he used to build and a cruder type (made using a plastic jug, gas or kerosene, a sponge and a couple of incense sticks) that he said was probably used in the University City fire. It was the second type that got Coronado in trouble because he used as visual aids a half-full jug of apple juice that happened to be sitting on a nearby table and a VHS tape, as a stand-in for a sponge.
Coronado was arrested two-and-a-half years later, in February 2006, and
indicted for breaking a law created in 1997 to combat domestic terrorism and
rein in dissemination of online bomb-making instructions. The law essentially
prohibits anyone from teaching or demonstrating how to build an incendiary
device with the intent that the learner would act on the information and commit
a violent federal crime.
Notes form Closing Arguments � Rod Coronado trial 9/17/07
The day began with Jury Instructions, summarized in part below.
The burden of the Jury is to deliver a verdict based on the charges, returning a not guilty verdict if not convinced beyond a reasonable doubt.
The burden of the government is to prove that:
The Judge defined the defendants theory of defense as that he did not have intention, and that his actual words did not incite an imminent crime of violence.
The judge also added that an incendiary device is a destructive device, that arson is a federal crime of violence, that past speeches, and demonstrations have been admitted to help establish intent (Note: there were lots of these: the American University speech, more inflammatory that the 2003 speech at issue, 60 minutes interview, and even the 2003 condo fire that took place 15 hours before Rod was in San Diego.
Closing remarks by prosecuting U. S. Attorney John Parmley:
Parmley described Rod as a recruiter and mentor of arsonists, that his intent in the San Diego speech when he commented on the fire that morning was to glamorize it as a success because it got media attention. In this regard, Rod made arsonists out to be heroes and thus influenced his audience to do such actions.
Numerous citations from events other than the speech at question were used to
paint Rod in a negative light, including:
The prosecutor attacked the defense witness who asked Rod the question, suggesting her testimony is disingenuously na�ve. Parmley described Rod as a traveling arson recruiter, in San Diego for a few short hours and with a focused mission to recruit more arsonists for his causes. Regarding the legal requirements of imminent threat in the charges, the prosecutor took Rod�s statements about the extreme planning and caution to protect life in his past actions to suggest that seeds of relatively imminent arsons, subject to a similar planning process, could have been sown at the San Diego lecture. Much of the prosecution�s closing, as in the trial itself, sought to play on the emotions of fear, present the most inflammatory statements and images available to them, including a lengthy ending image of the fire in San Diego the morning of Rod�s talk.
Defense�s closing arguments by Tony Serra:
In sharp contrast to the government�s sensational imagery and displays of incendiary rhetoric, Tony Serra weaved together an over two-hour riveting presentation of the essence of the language of the statute in question, the actual evidence in the trial, and the responsibility of the Jury relative to the nature of the US legal system.
Repeating the Jury instructions, he reminded them that their decision is not
to be based on personal likes or dislikes, and that the question before them is
essentially if the defendant�s actions, and only
To back up Rod�s innocence, he stated that Rod had not come to San Diego as a
recruiter, but rather had given a standard speech about his life�s work, and
ideology, and the question which led to the
Serra then goes into the heart of the defense, the failure prove that an
imminent lawless action was provoked by Rod�s words. Listing myriad synonyms of
the word imminent, the point was driven home that the exception to protected
free speech covered in the statute under which Rod is charged (the "Brandenberg"
exception) has the purpose of preventing immediate violent action and harm,
incited by words. Such words would clearly be a direct call to immediate action
("Follow me! Let�s go burn it down!") Serra�s dramatic and elegant oratory
skills were quite effective
Concerning some of the prosecution�s evidence, Serra qualified that Rod was once in a point in his life where he committed illegal acts, and for which he went to prison. He then became a movement spokesperson, and thus an advocate. In doing this, he was protected by the First Amendment; even though his speech was political, and offensive to some, allowing that it was likely offensive to some on the jury, it was protected. Serra stated that a free society, to avoid becoming totalitarian, must allow all to espouse their ideology, and seek to protect the speech and ideas that offend us most. To the Jury: "Although you may hate his ideology, love the concept that protects his freedom of speech."
Regarding the question asked of Rod in 2003: the person who asked the question demonstrated no intent or desire to actually commit an arson, and testified to that as well. Tony reminded the jury that Rod hade also cautioned the audience about the risks involved in such actions, citing Jeff Luers, who received a 22-year sentence for burning three SUV�s at a car dealership; those words were a red light, not a green light, said Serra. No one at that talk was inculcated with the mentality to go out a commit violent crime.
In order for the Jury to judge intent, they need to understand the law clearly, to induce or deduce. They must by completely sure in order to reach a conviction on his intent. If it was possible to them that his intent was to incite imminent action, or even probably, they must deliver a finding of not guilty. A preponderance of evidence, still requires not guilty. Only if the Jury believes that beyond all reasonable doubt that it was intention to incite imminent action should he be found guilty. The hallmark of reasonable doubt: reject that which points to guilt, embrace that which points to innocence. The only way to reach a conviction in this case would be for the Jury to reject the qualification of imminence, and throw that part of the instructions out the window.
On the Prosecution�s "Red Herrings":
Fire instills animal fear, is deep within our psyche. The prosecution is playing on that fear with sensationalized imagery and conjecture, making the prosecution�s motive questionable. Rod�s ideology is unfairly on trial. They play up crimes in the past, portraying him as a threat, rather than showing that his heart seeks to protect the health of the earth and the animals. We expect to side with law enforcement, because we are beholden to them for our safety,yet they have proven unreliable at best in this case. "The thin blue line has become a thick blue wall. What law enforcement wants, law enforcement gets."
"The foundation of the criminal justice system is honesty, integrity, candor and impeccability of law enforcement. They are the brick and mortar we pay for and depend on. To err is human. We are not punitive in our judgment of mistakes. Let us visit Detective Joseph Lehr. He awoke early on August 1 to a devastating fire. He saw the ELF banner. He was traumatized. Lehr went to Rod�s talk that night, undercover. He may have had anger, animus, may have lost clarity � officers are not supposed to do these things. He knows the significance of words. He puts in his report the words "bomb for an action." Heavy words. An indictment of the individual. When caught, he admits to misstating the words. Why are we here then? We would not be here without these words. That was the case. This is s a great misstatement. This is a tragedy. This is at a minimum a wanton disregard for the truth. This is treason by a seasoned officer. If you measure in your mind the potential harm to a society when a police officer grossly misstates something that is at the heart of the case, isn�t that something that presents more potential harm than someone presenting the words of the ELF or ALF? What is worse I ask you? The one has first amendment protection; the other has the potential to be gross political malfeasance. There will never be a more concrete, more dramatic form of impeachment than this. Do not brush it off. It is unacceptable."
Addressing specific evidence from the Prosecution:
The undated letter seized from Rod�s computer lauds direct action, but ends with "My friends, I cannot tell you what you must do. Only your heart can now do that." This is not a call to action. The San Diego speech was also not a call to action.
In the 60 Minutes interview Rod says he is "asking people brave enough to take the risks�" This is not a call to action. Likewise, the American University does not cross the line by calling for immediate violent action. Plus those are not what he is charged with, but they were presented.
In addition to this history, Rod was under intense police scrutiny for years. They knew where he was and what he was doing. They were monitoring his speeches before and after August 1, 2003. There were at least six police officers involved in monitoring his talk in San Diego. At some point, it went to a Federal level. They were following him, but he committed no crimes. What does the two+-year delay in his arrest signify? He is clean. He wasn�t arrested until 2006 � was it merely a tactic to silence him? (Objection/sustained)
Remembering the words of Voltaire, "I disagree with what you say but will
fight to the death to protect your right to say it." This is a terrifically
important case. The two most beautiful words in the
Rebuttal by Prosecutor Skerlos:
One of the most beautiful things to me is the evidence. Cites the ATF agent testimony about the destructive power of fire, and Detective Lehr; for you the Jury to consider whether he is truthful. Case boils down to the evidence of what he did and what he intended to do. Suggests that Defense witness Kari Shaw, who testified about the question she asked Rod, was in collusion with Rod to ask the question for him to answer.
Sept 13 Court Update: Rod Coronado Trial
Kelly Stewart, Sheriff Dep�t. undercover cop still on stand. Prosecutor Parmley brings up that there is new evidence�this is the audio that the defense uncovered, of the *question* in question, and subsequent answer. (Background: it is an audio recording whose existence was apparently heretofore unknown. Likely a small recorder in someone�s pocket.)
Prosecution gets Stewart to establish that the government did (and she participated in) investigations and questioning of people, including Grand Juries and search warrants to locate additional recordings, but this recording had not come to light (or sound). It is poor quality, but comprehensible. The government made a transcript. Once established that the tape exists, it is played in court.
The words: �Can you really explain to us, how to, at some point, how to assemble an incendiary device?� And then Rod�s rather long answer discussing two kinds of such devices, and the demonstration using the apple juice jug. (Partial: incendiary devices are devices that do not explode, but consist of a timer, 2 wires....(much more) when 2 wires connect, it completes electrical circuit...filament. ..windproof matches, can of fuel, etc. He says �More popular today, however�, and then discusses jug method using the Martinelli�s half gallon jug from the potluck that evening and a cassette tape as props and discusses using lamp oil, sponge, stick incense.)
He says �It�s dangerous. A person could do serious prison time, citing Jeff Luers case, emphasizing that his sentence was more than a rapist would get. Rod says (on tape) �I began as a strict liberationist. ..but I saw that when we set the animals free, the labs just go to Marshals catalog and order 1200 more...that�s why we use other tactics...�
Tony Serra checks for accuracy of words in re cross examination. Stewart admits to participating in the investigations of the government, but not until two years after the speaking engagement.
Defense launches. Re-calls undercover officer Joe Lehr. When Tony Serra asks Lehr is he has seen the transcript, Lehr replied that it was laying on the witness stand when he took his seat, to which Serra replies, �Don�t you mean LYING?!!� Tony then proceeds to impeach Lehr through exposing his on-stand lie (made up quote from Rod, different from real quote.)
Tony quotes his previous testimony where Lehr said the woman asked, �Can
you tell us how to make a bomb for an action?� Tony asks Lehr if he has
been exposed to the audio of the actual question. Lehr reads transcript.
T: Do you see lack of reference to bomb or action?
On re cross, Skerlos asks Lehr whether he is familiar with the federal statute under which Rod is charged, Lehr says not very familiar. Tony comes back to this and gets out �another mis spoke� before the objection arising from govt�s table is sustained.
First defense witness Cari Shaw. Questioned by Omar Figueroa. Cari is the person who asked THE QUESTION in question. She testified that she did not really know Rod and when he came to their house prior to his speech, they didn�t discuss upcoming speech and certainly did not plan a question (absolutely not, she said.) They get to the question that she asked that night, and Omar asks whether she asked about a bomb for an action. She says no and that she would not have.
When Skerlos crosses her, he is aggressive, rude, and dives into grand jury matters, citing fact that her husband, David Agranoff was called before the Grand Jury. Cari says it was never clear to her what the purpose of the Grand Jury proceedings was. After Skerlos says �Let�s talk about the GJ,� the lawyers go up for a long side bar.
In continuing unfriendly questioning of this key witness, it is established her question was spontaneous, and than she does not, in fact, agree with many of Rod�s stated positions and politics. Skerlos asked what sparked (haha) her interest to ask a question�was it something that was said that made her want to learn how to make an incendiary device? She said �I didn�t necessarily want to learn.� The way she recalled his answer she said was that it was more about what had been done than �how to�. She also said that she feels she bears responsibility for the situation whereby Rod ended up in court in San Diego. She is a calm and cool witness, though obviously inexperienced in this sort of thing. It makes her all the more credible.
Next witness is Michelle Luneau, questioned by Jerry Singleton. She is a student at UCB and attended the speech, bringing her 13 year old brother. She was also called before the S.D. Grand Jury. Jerry asked if anyone ran out saying �Let�s Burn It Down!� No. She and the following witness established that it was a crowd of ordinary people who happen to care about the environment that attended Rod�s speech, and no one felt the crowd was incited to take immediate action based on suggestions by Rod.
The next and final defense witness was Colleen Deisel, again questioned by Jerry. She has a recycling business and runs the Green Store. She too was subpoenaed by the GJ. Apparently she had told the GJ the two �most radical� speeches she had heard were Rod�s 2003 speech and one by Paul Watson. But despite the fact that she maintains she considers herself radical and is passionately non-violent, on cross examination, Government prosecutor said �I am defining radical as being violent� so that it would follow that Rod�s speech was being characterized as one of the most violent. She did not say this, and somehow, Parmley gets to rewrite Miriam Webster undeterred by the judge. After she said, in response to her friend�s shock at Rod�s strong words, �He served his time; he has the right to talk about things he did. He was relating information about incendiary devices with a historical perspective, the defense case wraps up.
September 12, 2007
The hearing opened today with the Court redacting admission of parts of the videotape of a speech given by Rod Coronado at American University in January of 2003, on the grounds that they were not relevant to the case.
Cross-examination of San Diego City Undercover Police Officer Tony Lehr then continued. Defense attorney Tony Serra, having established the day before that the Officer�s report of the San Diego speech was "incomplete and fragmented", was able to get officer Lehr to admit that the quote he attributed to a woman in the audience, one that is a cornerstone of the case, was actually paraphrased. Despite that admission, the officer repeatedly insisted that he heard the woman ask Rod "how to build a bomb for an action?"
The real bomb dropped was Tony Serra�s introduction of contradictory evidence to Officer Lehr�s sworn testimony. First introduced was the statement of another undercover officer who attended the event, a woman from the San Diego Sheriff�s department, who used significantly different terminology in describing the question to Coronado (saying the woman asked how to make "an incendiary device", as opposed to a "bomb for an action"). Despite this, Office Lehr stuck to his story that words he heard were "bomb for an action." Serra then read the actual question posed by the woman, as he introduced the existence of an audio recording of the event heretofore unmentioned. It seems clear that the testimony of this undercover officer of 18 years, who has infiltrated hundreds of San Diego groups, was fabricated. Tony also got Lehr to admit that he followed Rod after he and another person drove away from the event. Officer Lehr was excused for today and will be recalled later.
Prosecution then brought an ATF fire investigator to the stand. Brian Grove was hired by the FBI to test incendiary devices described in the lecture given by Rod at American University, and described in an anonymous pamphlet called "Maximum Destruction not Minimum Damage." Lengthy testimony about these tests as well video documentations of them informed all about the mechanics of these particular devices. Defense attorney Omar Figueroa cross-examined the witness to determine that his tests did not include tests of the same device that was described by Rod in his speech in San Di ego, for which he is being tried.
Prosecution then introduced the entire recording of the American University speech by Rod, personal writings of Rod�s seized from his computer in the raid of his home on February 22, 2006, as well as excerpt from an interview by Ed Bradley with Rod on 60 Minutes.
The final witness for the prosecution was Officer Kelly Stewart from the San
Diego Sheriffs Department, who, in an undercover capacity was assigned to
monitor Rod�s speech in San Diego on August 1, 2003. Much of Stewart�s testimony
completely contradicted the testimony of Officer Lehr, including: where the
officers were sitting in the audience, whether the woman who asked the question
to Rod was sitting or standing, whether there were multiple police agencies
involved, whether Stewart and Lehr had coordinated their investigations of the
event, and most significantly, the actual wording of the question, for which Rod
is on trial. More contradictions and misrepresentations are expected to come out
when Officer Lehr is recalled in the morning.