Jim Bell Trial: First Day

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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 ½ 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?"



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