Jim Bell Trial: First Day

First Day: Jim Bell trial The first order of business was a motion by Declan McCullagh's attorney, Guy Michaelson, to quash the subpoena to testify. Michaelson argued that requiring McCullagh to testify would be both an abridgement of McCullagh's first amendment rights and could deprive Jim Bell of a fair trial. The motion was denied by Judge Tanner. Bell's defense attorney, Robert Leen, then stated that he intended to cross- examine McCullagh and stated that the court must decide the appropriateness of questions. Tanner ruled that the cross-exam would be limited to McCullagh's direct-examination testimony. McCullagh left the courtroom shortly after that. Remaining in the courtroom were Bell, Leen, the prosecutor, court personnel, IRS and treasury agents, 2 reporters from CBS, and a couple of spectators. Apparently neither the local Seattle or Tacoma papers, or the Vancouver, Washington, paper sent a representative. Leen then made a motion to withdraw from the case. Bell spoke up at this point and Tanner told him that Bell could speak only when the Judge directed. Tanner then told Leen: "He [Bell] doesn't trust you." Leen: "He has great personal animosity." Tanner then told Leen that he had responded Bell well. Tanner ruled that Leen could not withdraw from the case unless Bell chose to represent himself. Leen asked if he could "standby" to reassume defense, and Tanner refused to allow that. Leen then tried to get counts 4 and 5 thrown out on the basis that the 2000 version of the law was unclear, unlike the 1996 version. Denied. Leen then moved to have Bell's parents attend the trial, and not be sequestered like the other witnesses. He stated that they could give no testimony of substantive nature and would only be used for rebuttal. Denied. The defense attorney then requested limited voir dire with respect to Bell's first amendment rights, in a move to eliminate jurors that were weak on freedom of speech. Tanner ruled that he would handle the voir dire. Leen then asked about the subpoenas requested by Bell for the US marshall and three people in Vancouver. The marshall refuses to show up at the trial without a court order. Tanner stated that he would decide to issue a court order based on potential relevance of the prospective witness. He requested that the defense provide a written reason why the witnesses needed to be called. Leen made another attempt to withdraw as Bell's attorney. Tanner: "Any further motions for withdrawal of attorney will be considered an attempt at harassing and delaying the trial." Robb London, the assistant US district attorney who is prosecuting the case, then attempted to get Tanner to hold Bell in contempt, because Bell had refused to provide a handwriting sample for the government's handwriting expert. If Bell was held in contempt, he would get no credit if convicted for the five months already served. Denied. Bell's attorney moved to have the judge recuse himself based on past business interests. Tanner refused, stating that the business was decades in the past, that the person that he had transacted business with had been dead for years, and that he had never heard of Jim Bell in connection with the past transactions. During this discussion, Bell spoke up again, and Tanner threatened to either muzzle Bell or have him sent downstairs to view the proceedings remotely. Another two subpoenas issued by the defense for federal agents were quashed by Tanner. During this ruling, Bell held up an 8.5 x 11 inch notepad with the word "SHAM" in large letters. Then the wait for jury selection began. Two of the jurors were apparently late, and the selection was delayed for over an hour. One of the spectators turned out to be the wife of a potential juror. When asked if she was from Tacoma, or if the jurors were being drawn from the suburbs, she replied that she was from Battleground, Washington, near Vancouver. She and her husband had driven about 2 œ hours to get to the courthouse in Tacoma. "Was the court going to put her up in a hotel?" "They offered, but I've got children at home, so we'll drive home every night." A typical prosecution tactic is to try to pick jurors who will be most inconvenienced by the trial, based on a belief that disgruntled jurors will take out their frustration on the defendant. Eventually 30 people filed in. There were more women than men in the pool. Most were dressed casually, even a little dowdy. This was clearly not the kind of jury pool that would be seen in Seattle federal courts just 30 miles to the north. And the voir dire questioning of the jurors bore that out. The jurors were questioned as a group, with occasional individual questioning based on specific answers. Of 30 prospective jurors, 7 had military experience, one was a US forest service employee (she was selected), one a NOAA employee and one a USGS employee. Five were retired and collecting Social Security. All were asked if they could be fair and impartial, in spite of collecting or having collected government paychecks. All nodded yes. The prosecutor then read the list of names of government witnesses to the court. They included Bell's parents, several IRS agents, people who had contact with Bell when he talked to them, Jeff Gordon (who sat at the prosecution table throughout the day), John Young, another local cypherpunk, and one or more of Bell's friends. None of the jurors had heard of any of the witnesses. Then the judge questioned jurors about their computer knowledge. Most claimed that they had computers with internet access. Only one claimed that he subscribed to an internet newsgroup. Three said that they had frequented chat rooms; 5 said that they were on mailing lists. Of the five, three were only on one list, the other two said that they were on several lists. One person (who was later dismissed) said that he had heard of the cypherpunks, but could not remember where or in what context. Nobody had heard of Bell or Assassination Politics. Then the judge asked the infamous "F" question: Had anyone heard of FIJA? No juror raised a hand. Had any juror participated in a common law court? No. Did any juror believe that the income tax was unconstitutional? No. Did any juror belong to a militia? No. (One of the jurors piped up "The U.S. military," which prompted laughter from the courtroom and a clarification from Tanner.) Had any juror had "contact" with the IRS, such as auditing? Six people (out of 30, a 20% rate!) had been audited. Five of the six characterized the experience as "unpleasant." Five jurors had served on a jury in a civil case, 2 in a criminal case. Three had been witnesses in civil cases. Five of the jurors had been either the plaintiff or defendant in a divorce action. The judge then reminded the jury that they had taken an oath to judge the defendant according to the law. He stressed that the government always had the burden of proof. One juror, a teacher, was excused. No juror worked for law enforcement, although one man (later dismissed) had a daughter in law enforcement. The government was then given 6 dismissals for cause, the defense received 10. When the jury was selected, 7 men and 5 women were selected, with 1 female alternate. The jury is mostly middle aged. Young hip-looking jurors were dismissed. Only one or two retirees made it onto the jury. Leen then moved to allow the jury to take notes. Tanner saw no problem. Leen then made an interlocutory appeal on the basis that the court had no jurisdiction in the case. Tanner replied that he had heard nothing from the ninth. Leen also mentioned that the jurors were instructed before the jury selection process that "the plaintiff and defendant" would make opening statements. Leen mentioned that Bell believed that meant that he (Bell) could make an opening statement to the jury. Tanner said that Bell could only do that if he decided to represent himself. Court then recessed for lunch. Before reconvening, Jeff Gordon, London and Leen engaged in a little casual conversation. London asked "Why do we have to do this? Why couldn't he just accept a plea bargain?" Leen shrugged. Leen kidded Gordon about how he looked like he'd been weight-training, "pumping up for the trial?" Gordon joked about getting in shape for the IRS SWAT team. When the court reconvened, London made his opening statement. He said that the incidents for which Bell was charged occurred during October and November, 2000. Bell made a "sustained and deliberate effort to harass two law enforcement officers, and a third person, not a law enforcement officer, in the Bend area." London claimed that Bell was zeroing in on the homes of the LEOs. He "got one right, but the agent had just moved." To locate the homes, Bell "obtained data from public databases." London attributed Bell's motive to a prior conviction in 1997. Then London spoke of the Multnomah County Common Law Court, which held trials of IRS and other federal officials in absentia. The problem that such a court had was enforcement of its judgments. Bell offered a "solution to their enforcement problem: Operation Locate IRS." He invited people to suggest names to check against public databases. Bell believed that "if people know where IRS agents live, they'll be much less likely to intimidate people." London said that an undercover treasury agent, Steve Walsh, would testify that he attended the common law court, serving as a juror, and wearing a body wire. Bell gave a diskette to Walsh with the AP essay on it. Because of this and other of Bell's activities, IRS officials obtained a warrant in 1997 and raided Bell's home. In the raid, they found papers where Bell claimed that he had made his own version of Sarin gas. London dramatically linked this to the Tokyo subway attack before the defense attorney objected. Then London talked about the "mercaptan attack." London stated that Operation Locate IRS is an obstruction of the IRS law enforcement, and that AP was supposed to intimidate IRS agents. London went on to say that while still in prison, Bell started planning revenge. "I'm not going to kill them off, other people are going to do it." London alleges that Bell said. After release, Jim collected databases and used them to try to find Jeff Gordon and Mike McNall. He managed to locate the former home of ATF agent McNall in Bend, Oregon, and contacted the current occupant one evening. Bell kept a diary of his "stalking activity which agents found in the November, 2000, raid. He detailed his visits to a "Jeffrey and Barbara Gordon" (not the IRS agent Gordon) in Eagle Creek, Bend, and Tualitin, Oregon (where another Jeffrey and Barbara Gordon-again not the agent-lived). London hinted that at this point, Bell engaged in illegal activity when he posted on the internet a message "Say goodbye to Joshua"-referring to the son of one of the Gordon couples. (A search for this message in Google turned up nothing.) Joshua's mother claimed that the Blue Cross/Blue Shield of Alabama's insurance statement for her son never showed up in October 2000, and London implied, but did not state outright, that Bell had stolen the mail. London said that the government would present testimony from Brian Kenny, a records custodian with the insurance company, that the statement was mailed that October. London also stated that Bell's "Joshua" email could be traced directly to Bell's home since Bell had "hard-wired" internet access. (Cypherpunks would say that if a person has a fixed IP address, that's a good reason to use remailers, anonymizing proxies, or onion routers to send mail. Apparently, Bell did not use cypherpunk technologies. On October 31, Bell faxed Gordon at his office. The fax stated that he was going to come by Gordon's residence that night. London said that telephone records will show that the fax originated from Bell's house. It is this fax that accounts for count 3 of the indictment-interstate use of a communications medium to stalk federal agents. On October 25, John Young, who London characterized as operating a web site dedicated to "spreading some sunshine on government operations" sent an email to the cypherpunks list concerning the identity of an alleged CIA front man in Bend, Oregon. London claimed that this man is not a CIA agent, but is now fearing for himself and his family. On November 3, Bell and a friend drove to the assumed agent's house in Bend, and talked to the resident there. After that, Bell posted the personal data for this person on the internet which, London declared, "would stay on the internet forever." On November 6, agents got a court order for a search of Bell's home. They also attached a GPS tracking-device to Bell's car. The house search revealed "reams of paper" about McNall and Gordon. Agents seized Bell's investigative diary, and the original of the fax to Gordon. Late on November 10, Bell returned to the former home of McNall in Bend. He spent 10 minutes on the McNall property. How did the government know that he was there and how much time was spent there? When Bell drove more than 2 miles from his home in Vancouver, Washington, Gordon received a page from the device. Gordon then use his laptop to track Bell. Gordon called the Clackamas county sheriff, who headed out to Bend, but failed to find Bell until he had already left the former McNall property. London stated that while Bell was on the property, he left notes on three cars, asking them to "please call John Branton at the Vancouver Columbian." Bell had been trying to get Branton to write a story on what was happening to him. On November 12, treasury agents obtained a warrant and arrested Bell. Defense attorney Leen made his opening statement. He started by telling jurors that there was "a fine line between stalking and investigation." That line is blurred when the subject is a federal agent." Bell was doing nothing more than investigation. Leen tried to separate the events leading up to the 1997 arrest and trial from the events in 2000. "Mr. Bell has already been tried." He mentioned that Bell felt that he had been coerced into a guilty plea in 1997. Bell believed that McNall had made a deal with an inmate, Ryan Lund, to intimidate Bell in exchange for leniency in Lund's own case. Lund beat Bell up while at the Federal Detention Center. Leen pointed out that "Whether a figment of his imagination or not, he [Bell] had a right to investigate." He said that Bell was polite, never did anything to put police officers in danger when stopped. "Mr. Bell's activities were perfectly lawful." At no point did McNall or Gordon seek a restraining order like an ordinary citizen would, but instead went to the US attorney's office. "And that's why we're here today in this court?. Mr. Bell never many any true threats, but only wrote things that scared people." Leen read from the cypherpunks manifesto. "Privacy is necessary for an open society in the electronic age. Privacy is not secrecy. A private matter is something one doesn't want the whole world to know, but a secret matter is something one doesn't want anybody to know. Privacy is the power to selectively reveal oneself to the world?. Since we desire privacy, we must ensure that each party to a transaction have knowledge only of that which is directly necessary for that transaction?. Therefore, privacy in an open society requires anonymous transaction systems. Until now, cash has been the primary such system. An anonymous transaction system is not a secret transaction system. An anonymous system empowers individuals to reveal their identity when desired and only when desired; this is the essence of privacy." Leen went on to quote Tim May, "Computer technology is on the verge of providing the ability for individuals and groups to communicate and interact with each other in a totally anonymous manner. Two persons may exchange messages, conduct business, and negotiate electronic contracts without ever knowing the True Name, or legal identity, of the other?. These developments will alter completely the nature of government regulation, the ability to tax and control economic interactions, the ability to keep information secret, and will even alter the nature of trust and reputation." Leen questioned the motive for Bell's 1997 prosecution. After all, he pointed out, Bell had written and disseminated AP in 1995, but the government didn't discover the essay until 1997 when the IRS seized Bell's vehicle. Leen also pointed out that Bell was doing nothing wrong in going to Oregon in 2000: "Bell crossed state lines to investigate?. We don't prosecute people for what they might do, but for what they have done." Leen ended his opening statement by emphasizing that Bell had done nothing illegal, and that the first amendment protects Bell's speech, no matter how objectionable. London called the first witness, Steve Walsh, who currently works for the Department of the Treasury's Inspector General for Tax Administration. In 1996, he was working for the IRS' Office of Regional Inspector Internal Security Division. Walsh worked as an undercover agent masquerading as "Steve Wilson", attending over two dozen of the Multnomah County Common Law Court proceedings between January, and May, 1997. He not only attended, but served as a juror on the common law court. Walsh testified that he saw Bell at three of the meetings. Bell allegedly proposed that the CLC serve the defendants-mostly IRS agents-at home, which would be "much more effective" at restraining abuses by individual IRS agents. London then got permission from the judge to show a brief video of Bell talking about enforcement action-Operation Locate IRS--that the CLC could use. Before showing the video, London told the judge that he was going to show the video; Tanner was clearly not enthusiastic about watching a film and asked "How long is this going to take?" With Walsh's testimony, it became very apparent what the government's strategy was going to be in this case: they were going to bring up all of the material from the 1997 trial in theory to show that Bell had the potential to harm federal agents. It also served to have a visceral effect on the jury. Interestingly enough, in Walsh's testimony, and all the other testimony on the first day of the trial, not a single witness was able to document any criminal act by Bell after his conviction in 1997. Leen then cross-examined Walsh. He asked "Do IRS agents attend domestic political activities?" referring to the Common Law Court. Walsh equivocated. Leen asked which of Walsh's supervisors had asked him to monitor the CLC. Walsh said that he wasn't sure. Leen conferred for a minute with Bell, and then asked if Walsh carried a firearm when attending the Common Law Court. He had. Another conference. Then Leen asked Walsh about the time Walsh went to a Libertarian Party meeting to meet Jim Bell. Walsh claimed that he went to the meeting to pick up something from Bell. Walsh admitted that he was wired at the time, but he pulled Bell out of the meeting. Walsh did not clarify whether he actually walked into the meeting or not. Walsh also stated that he called Jim Bell at his home nine times between 1/97 and 5/97. One rather interesting piece of information that Walsh disclosed was that the CLC had tried Janet Reno-and acquitted her! Walsh voted to convict Reno. Walsh kept no reports of the meetings that he attended, which would be normal law enforcement practice. (After the trial was over for the day, an observer pointed out that a legitimate law enforcement operation was always documented, but that a politically-motivated one would not be.) When Walsh stepped down, Declan McCullagh was called to take the stand. McCullagh made quite an appearance: a consummate professional, dressed like he's just stepped out of a GQ page. By contrast, London was wearing a rather poorly-fitting powder O.D. green suit and walked with a slouch acquired from sitting at a desk for too many years. The jury visibly responded to the contrast. McCullagh made abruptly brief replies to London's replies, refusing to give any information about the background of any articles that had appeared in Wired. In a precise almost-mathematical fashion, he often replied, "I don't recall" and "I have no independent recollection." to London's questions. "Did Mr. Bell say that he was going to take revenge on the system that imprisoned him?" "I don't recall." After seven or eight minutes of fruitless questioning, London asked the judge to declare McCullagh a hostile witness. The judge did not rule. Finally, London got a single crumb: "Is it your practice to accurately publish based on best memory of what someone has said to you?" "Yes." On cross-examination, Leen asked McCullagh if he had talked to Jeff Gordon. McCullagh "respectfully declined" to answer based on first-amendment journalistic privilege. McCullagh pointed out the Gordon's opinion that was quoted in the Wired article was linked to an affidavit filed by Gordon which resided on a government web site. Under further questioning by Leen, McCullagh agreed that the quotes attributed to Jim Bell were likely to be what Bell said. "Are you a member of the cypherpunks mailing list?" "Whether or not I am or not is outside the scope of the article, and I respectfully cite my first amendment journalistic privilege." Tanner ruled that several more questions along the same line were outside the area of appropriate queries. As McCullagh was being dismissed, attorney Michaelson asked the court to release McCullagh from further testimony. Tanner agreed. The next witness was Cindy Brown, who in 1997 had been employed as an inspector in the Internal Security Division of the IRS. She testified that she had been the person who downloaded email from the computer seized from Bell's house in 1997 and read portions to the court. Leen objected to almost every email introduced into evidence. "Stale evidence, inflammatory, prejudicial to the jury" he repeated frequently. After several objections, Tanner called on London to explain the relevance of all the email introduced into evidence. London: We intend to show "knowledge, motive, plan, and intent." Brown introduced the follow email: (a) listed names and addresses of a number of federal agents sent to Green Panther Terry Mitchell. (b) A copy of AP sent to Stanton McCandlish. (c) Mention of Sarin and claim that Bell could make an analogue at home. (d) A discussion by Bell about the use of mercaptan, with a mention of its use in a legal case, for which Bell did not take direct credit, but appeared to imply that he had something to do with it. (e) An email from a local cypherpunk to Bell in May, 1996 discussing Bell's political philosophy. (f) An email to the NW Libertarians from Bell, proposing building a database of every name and address of every IRS agent in Oregon. "It is likely that these people will be more pliable and less abusive in the future." By this point in the testimony, the jury behavior is starting to get interesting. Every time London speaks, all heads turn to watch. When Leen objects or speaks, only 3 or 4 people look at him and follow his movements. Brown then introduced more email, with the subjects of quinuclidinyl benzilate and AP. Brown stepped down and the jury was dismissed for the day. Leen moved to exclude an exhibit of Bell's 1997 plea agreement. He raised the question of a "404B"-convicting a defendant twice for a prior crime. Tanner admitted the exhibit. Tanner concluded the session by asking, "Anything else to take up before sentencing?", then quickly corrected himself by saying "Anything else to take up before adjourning?" Free, encrypted, secure Web-based email at www.hushmail.com