Briana Waters: Guilt By Association

author : Leon Janssen topic : Green Scare | arson of the Center for Urban Horticulture

by Leon Janssen

Briana Waters, a 32-year-old violin teacher and mother, was indicted in 2006 for aiding the arson of the University of Washington Center for Urban Horticulture (CUH) in 2001. Briana was charged toward the end of a string of indictments stretching back to December 2005, when the FBI’s “Operation Backfire” made numerous arrests for a series of ELF/ALF actions from 1996 to 2001. Briana went to trial facing five counts: one charge for conspiracy, two overlapping charges for arson, and two charges involving use of a destructive device in a crime of violence, which carries a 30-year mandatory minimum sentence.

Briana steadfastly maintains her innocence to this day. She is the only one of the “Operation Backfire” defendants to take her case to trial.

Briana lived in Olympia until 2001, and during her time here made many lasting connections to the Olympia community. While attending the Evergreen State College, she produced and directed a documentary titled “Watch,” about the campaign that united environmental activists and rural timber workers, in Randle, WA.

The government alleged that Briana served as a lookout and acquired a car that the government claims was used for the arson. There was no physical evidence linking her to the arson. The case rested on the testimony of two women, Lacey Phillabaum and Jennifer Kolar, who agreed to cooperate fully in exchange for drastically reduced sentences of three to seven years, rather than 35 to life. On March 6, 2008, after four and a half days of deliberations, the jury returned a verdict of guilty on the two arson charges, but deadlocked on the other three charges.

The twisted legal travesty began when the government indicted Briana in Tacoma rather than Seattle in order to have the indictment in front of Judge Burgess. The Defense’s objections to numerous rule violations fell on deaf ears; every Defense motion was denied, except one the prosecution didn’t object to. In one motion the Defense stated: “In the course of suppressing critical exculpatory evidence, and the cover-up of the suppression, the prosecution has prepared at least two false Reports of Interviews (FBI form 302), has fraudulently represented the false reports to be authentic, has engaged in numerous dishonest efforts to conceal the fraud, has filed two perjurious sworn Declarations, has written at least one dishonest letter to defense counsel, and has filed at least one false pleading. This misconduct constitutes the federal crimes of perjury and obstruction of justice, and has subverted Ms. Waters’ constitutional right to counsel, to due process of law, and to a fair trial. We recognize that these are very serious claims, but the proof of the claims is documented and it is manifest.”

When the trial began on February 11, dozens of supporters were in the courtroom to offer moral support and to take notes, which continued throughout the trial (posted at http://portland.indymedia.org/en/topic/greenscare/ ).

The prosecution’s case opened with character assassination and an elaborate storyline that connected the University of Washington arson with a series of other arsons around the Pacific Northwest. Prosecutor Friedman wrapped up by reading a quote from an article on the ELF about the need to “...pick the best target, the best tactics. Think big: Wall Street, the Statue of Liberty, Disneyland, (etc.)” This epitomized the tone of the opening statement; it was hard to keep track of how many times he used the words “ecoterrorism“ and “terrorist.”

In the Defense’s opening statement, attorney Bob Bloom effectively called the government on their blatant fear-mongering, and reminded the jury that this was a trial that needed to be based on evidence beyond a reasonable doubt. He emphasized the defense’s case: Briana Waters WAS NOT THERE. She was NOT involved, and that as much as the prosecution could try to spin the facts to their advantage, it was the jury’s job to look at things through the filter of reason.

The prosecution began their case with the testimony of Federal Agent John Comery from the BATF. He went into detail about nearly every ELF arson from 1996–2001 EXCEPT the UW arson. Observers got a chance to see many grainy photographs of various devices and buildings (often with four or five shots of each from different angles), maps and diagrams showing the layout of the different sites and the distribution of the incendiary devices, and the resulting damage. We also learned how each device was labeled, i.e. 3A, 3B, etc., and saw close-up photos of many small charred bits of plastic and metal. This was to be a format the prosecution would revert to again and again throughout the trial, seemingly to bore the jury into submission.

The prosecution called expert witnesses from various federal agencies to testify that the accelerant/timer timer combination constituted a “destructive device.” The language of the law is meant to apply to “explosive, incendiary or poison gas bombs, missiles, landmines, and other similar devices.” There were no convictions on these charges, which had been used to pressure many Green Scare defendants to talk or face a life sentence.

Then came the testimony of Lacey Phillabaum, who pled guilty on October 4, 2006, to participating in the CUH arson. She came across as very pitiful and conflicted, and went into detail about how she got involved in Earth First!, the buildup of her activism through the WTO, how she met various people, and eventually escalating her activism through the formation of the “Book Club.” On direct examination by the prosecutor, she barely skipped a beat, answering wide-ranging questions about exactly who attended which Book Club meetings, and went on to describe in detail what she “remembered” about the events leading up to the arson. She also included specific details of the action itself that were later contradicted by Kolar’s testimony: stashing duffel bags filled with the fuel and devices behind a dumpster near the CUH, and sideswiping a parked car as they left the scene.

On cross-examination, Phillabaum was cagey and evasive. She was hard to pin down, using semantics and debating techniques to avoid answering questions. She had a conveniently selective memory. She was confronted about having sex with Justin Solondz, Briana’s boyfriend at the time. She claimed she had no memory of Briana confronting her about this until pressed by Attorney Bloom.

The prosecution called Robert Corrina, Briana’s cousin who lives in Olympia. He recounted that Briana had asked him and his wife to rent a car for her, and after his initial apprehension, he agreed.

During cross-examination, Mr. Bloom destroyed Corrina’s credibility, showing holes in his testimony. He had lied when first approached by federal agents at his home, telling them he didn’t recognize a photo of Briana. He later lied to the grand jury about renting a car. This was all after Briana had called him (and other relatives) telling them that there were accusations against her, that they weren’t true, and that if they were approached by anyone to “tell the truth.” It was revealed that Friedman and FBI Agent Ted Halla approached Corrina’s wife at work and threatened her, raising their voices and suggesting that the grand jury might indict them for perjury. Corrina’s testimony was scripted, his memory erratic, and he seemed unable to answer the simplest questions.

On February 20, the government put on Jennifer Kolar, who confessed to her involvement in four different actions including the CUH. Much like Phillabaum’s, her testimony went into extraordinary detail, from the Book Club meetings to who knew who and where they had met, to how they communicated. She described the events of the arson at the CUH, contradicting Phillabaum on a number of details. In fact, she had no memory of Phillabaum ever being there!

One piece of evidence that the prosecution focused on was a manila folder Kolar said Briana gave her containing various articles. Prosecutor Mark Bartlett went through the articles one by one, and had Kolar read aloud to the jury the most inflammatory sections, which he had highlighted. Kolar maintained that she had never read these articles, but “believed” that they were the ones Briana had given her, because she had simply put them away in a crate. Included in this crate was a bunch of PGP disks, passwords, her old laptop and PDAs, and other documents. She turned this crate over to the feds, leading many people to wonder why she saved all these sensitive materials... except possibly as an insurance policy in the event she was ever busted.

Under cross-examination by attorney Neil Fox, Kolar denied that there was any kind of car accident when they drove away from the fire. Fox also went over the details of her first interview with the government on December 16, 2005, when she recounted the people at the CUH arson as herself, Avalon, “Capitol Hill Girl, Capitol Hill Girl’s punk rock boyfriend and Crazy Dan.” Even though one of the FBI agents recorded this information in handwritten notes, he and his fellow agent altered Kolar’s account to state that she participated in the arson with Avalon and “others.”

Briana’s lawyers called one of the FBI agents, Anthony Torres, to show the extent the government altered reports to fit their conclusions. The government also refused to obtain the actual recording which Kolar herself made of one of her interviews, where she pointedly did not name Briana when discussing the identities of her accomplices.

The Defense called a series of witnesses who know Briana personally, and who testified to her good character and peaceful nature. One witness recalled a two-day meeting near Portland where Lacey met Briana, showing that Lacey had lied that the first time she met Briana was a week before the arson at a Denny’s in Olympia, a point she had made a big deal of remembering clearly in her testimony.

Briana herself took the stand, showing that she had nothing to hide. Briana testified that she hadn’t ever read the articles the government claimed she had given Kolar. (Inadvertently bolstering Briana’s account, the government had introduced testimony that while a fingerprint of Briana’s was found on the outside of the folder, not a single print of hers was found on any of the 90 papers inside.)

The jury began deliberating on Friday, February 29. Three days later a massive arson occurred in the Seattle suburb of Woodinville. Three luxury homes in a rural area were torched. As the jurors drove to the courthouse, (they weren’t sequestered) it was the top story on every media outlet, with immediate claims of “ecoterrorism” and questions about the timing coinciding with Briana’s trial. That morning brought intense argument by the Defense who wanted to know if the jury had heard any news reports of the fire. The judge instead asked the jurors if they felt they could disregard anything they might have heard and continue to follow jury instructions. When none of them spoke up, they were sent back to continue deliberating. The timing of the arson could only have hurt Briana’s chances for acquittal.

In the end, the jury came back with a guilty verdict on the two arson counts. In a shocking move, the judge agreed with the prosecutor that Briana should be detained for the three months until her sentencing on May 30. An emergency detention appeal has been sent to the Ninth Circuit.

People interested in helping Briana can go to her website, www.supportbriana.org, or follow the progress through Indymedia. There is currently a call for letters to Judge Burgess asking that she be sentenced to the minimum time possible.

When the government extends it’s war to our own community, it is crucial to stand up and support targets of repression. This case has seen a loving mother and caring friend convicted of crimes she took no part in, a case based on lies and manipulations of evidence by the government. While this should come as no surprise, in this case the fight for justice is not over.

Briana Waters’ address in prison is:

Briana Waters

36432-086

FDC-Seatac

Federal Detention Center

P.O. Box 13900

Seattle, WA 98198