Sixth Day: Jim Bell Trial The judge started out by giving the jury a generally boilerplate set of instructions. Then London started his closing statement. He re-read the counts, and covered what the prosecution has to prove. He said that the government did not have to prove: 1. That the houses that Bell found were the correct houses for the people he was seeking. 2. That Bell had found the current home address of Gordon and McNall. 3. That Bell had gotten within a certain physical distance of Gordon and McNall. 4. That Bell was armed or actually dangerous. 5. That Bell intended to harm or had the physical ability to harm. 6. That the people that Bell checked out had to know that they were being pursued before being informed by Gordon. London spoke of Bell's propensity for records collection, calling it the "obsessive" activity of "a grown man of 43 living with his parents." London read count one again and encouraged the jurors to write down the numbers of the exhibits as he mentioned them. He first listed exhibit 134, send 11/4 from Bell's home in Vancouver. It had to be Bell's home, London said, because the email had Bell's IP address on it. London said that if Bell had problems with surveillance or Ryan Lund, he should have filed a law suit, and gone through the "regular process." London then tied more of the exhibits to the other counts. London argued that the government didn't have to prove that Bell's only purpose was to harass, that the jury only had to find that one of his purposes was to harass." London urged jurors to verify Bell's credibility and "what his intent was against his personal history over the last four or five years." London noted the conflict between the secrecy that Bell wanted in his communications with McNall and Gordon and his postings on the internet and efforts to get John Branton to publish information about his investigations. London then talked about the cypherpunks, "whose unifying belief is the encryption of email with keys or PGP. "Why couldn't Bell send agent Gordon or agent McNall an encrypted email so that they could communicate and share the code between them?" (At this point, it was clear that London has no idea how PGP works, to say nothing of the likelihood that agents McNall and Gordon have published their keys- if they even have them.) London brought in exhibits from 1996 that showed that Bell wanted to obtain and publish home address of IRS agents. Bell hadn't changed his ways since then, and that "he still intended to harass." Bell had failed to recant AP. As far as Bell's intention to picket Gordon's house? "What is the purpose? The office is the appropriate place to picket?. What is the purpose of picketing someone's house? Harassment. Purely harassment." London accused Bell of trying to set up plausible deniability, which he defined as always being able to mask true intent, always being able to come up with a believable explanation for what one is trying to hide. He said that Bell was not honest about his actions or intent, that he was engaging in plausible deniability, that Bell's research was to provide plausible deniability for harassment. London discounted Bell's credibility because he was less cooperative on cross-examination than he was in answering questions from his own attorney. London tagged AP as the basis for all episodes of harassment. He said that AP was really closer than ten or fifteen years, because Bell had claimed in 1997 that it was seven to 10 years away. (This was an interesting play on "if you kill the messenger, you kill the idea" theory, an interesting attempt since on the internet, everything stays up forever according to the prosecution.) At this point, Bell said, "You're lying." Tanner asked him if he wished to be removed?" Bell apologized. Tanner, miffed, said "Forget about apologies! Do you wish to remain?" Bell responded "I wish to address the jury." Tanner said that he didn't ask that, that he asked if Bell wished to stay. Bell meekly said that he wished to stay. The judge declared a 15 minute break. As Bell was being escorted by US marshalls from the courtroom, he tried to hand a document to McCullagh and was prevented by the marshalls from doing so. Bell protested, "You've allowed me to talk to him before, why can't I talk to him now?" When court reconvened, London tied up his closing statement. He pointed to Bell's mention of PCBs in an email on 10/24/2000, shortly before he took actions. London said that the evidence established Bell's intent not beyond a reasonable doubt, but beyond any doubt. "Bell did not get the message because it came from people he does not trust- judges and law enforcement. Now he needs to hear it from people he does trust-12 ordinary citizens." London asked the jury to convict Bell on all five counts. Leen started his closing statement by calling his client a brilliant man with a brilliant mind, a disturbed mind. He told the jurors that they had to follow Tanner's instruction to follow the law as the judge gave it, that the jurors must not be influenced by likes or dislikes. Then he tore into London's last statement: "If a man is scary or poses a future danger, it's not your job to deliver the government's message to Mr. Bell." The jury was only there to decide if the defendant is guilty or not guilty only on the charges, and was not on trial for anything else. Mr. Bell was not on trial for common law court membership, for writing Assassination Politics, for writing "Operation Locate IRS," visits to Groener or the other Gordons. Certain things, Leen said, are not evidence. Attorney arguments are not evidence. Jurors decide what to believe based on common sense. Leen defined circumstantial evidence. In this case, jurors have to deal with circumstantial evidence. The jury was there to find guilt, "not to find that the defendant is wrong, bad, or scary." Then Leen went through each count, saying that the government had not proved Bell's intent. Leen called his client's mental state into question. He said that people feared someone like Bell "because they think normally? they don't think like Mr. Bell thinks." He asked the jury how they know intent. "Mr. Bell was trying to prove that the cause of the failure of his life was not his own but the government's." Bell's intent was to put the puzzle together and prove his case to people who would listen. Leen said that the government had to prove intent. Bell's thought processes were different than normal, and that the government's use of plausible deniability was a bald attempt to get the jury to believe that Bell was lying. But Bell was telling the truth as he knows the truth. The only decision that the jurors had was "Did Mr. Bell have a certain mental intent, and intent to harass?" Leen said that his client was difficult to interview for defense preparation, that Bell claimed that Leen threatened to kill him and his family. "I don't mock him, I pity him? Look to the evidence. Just because it's reasonable for Jeff Gordon to be afraid doesn't mean that Bell had an intent?. The government has failed to proved beyond a reasonable doubt that Mr. Bell's purpose was to harass, and that purpose was to expose, to prove that he was right." London got the last word in, according to Federal Court rules. He brought up two points: 1. Mr. Leen characterized Bell as having a flawed mind. This was not London's characterization. He said that Bell knew the difference between right and wrong. 2. "Mr. Bell's investigation to the extent that it took him to the doorsteps of people that he found was a form of harassment." Bell committed a crime just by entering onto private property. "Bell had to know that collecting addresses of IRS agents was itself harassment." Tanner then issued his last four instructions: 1. The jury had to decide what testimony to believe. In doing so, they were to consider a) was the witness able to see or hear the evidence that they testified to; b) was the witness accurately able to recall the evidence; c) what the witness' manner was; d) witness bias or prejudice; e) reasonableness of testimony; and f) whether the witness' testimony was contradicted by other evidence. 2. The weight of each side's case was not determined by the number of witnesses. 3. The jury cannot consider the punishment when deciding on a verdict. 4. The verdict must be unanimous. Two jurors were then excused. They both smiled and looked relieved. The jury went into the jury room at 1:30. At 3:30 they passed a note to the judge, saying that they wanted a definition of intent, and that they wanted a legal dictionary and the legal definition of intent. Dictionaries aren't allowed in the jury room. Leen moved that the court provide a definition of intent. London objected, saying that the definition was in the instructions as knowledge. Leen suggested to the judge that he define intent as "acting with object and purpose to commit a crime." London: "Tell them it's in the instructions." Tanner decided to tell the jurors that the definition is in the instructions. At 4:30 p.m., the jurors passed a note to the judge. Bell was brought back to the courtroom, and while waiting, he joked that he expected to be acquitted on some counts, that the jury "would split the baby down the middle." The judge re-entered the courtroom at 5 p.m., and read the note. The jurors had voted unanimously for a guilty verdict on counts 2 and 3, and were hung 11 to 1 on the remaining counts. Tanner sent the jury back to the jury room. Tanner brought up that there was a form issue in the note (which becomes part of the court record). Leen said that the note published the count of the juror's votes and moved for a mistrial. Denied. Tanner asked about the law on partial verdicts. He decided to call the jury back in and poll them on counts two and three and the form of the verdict, and have the jury fill out the proper form. The jury was polled and excused. None looked happy, and none had looked at Bell during either before, during, or after the polling. Tanner set sentencing for July 6. Leen moved for dismissal of counts 1, 4 and 5. London asked Tanner to dismiss without prejudice so that the government could refile the counts. Tanner dismissed without prejudice. Leen moved to dismiss counts 2 and 3 on the basis of jury prejudice. Denied. Tanner granted Leen 10 days to file for a new trial. London said that he wanted the court proceedings copy back from the defense. He moved to have Bell's notebook and other exhibits sealed. Tanner: "I don't think I have the authority to do that. Do I?" London: "I'm not sure." Tanner: "Order [to seal] goes [applies] to jurors, period." Free, encrypted, secure Web-based email at www.hushmail.com