Homicide of David Chain

Nicholas Wilson nwilson at mcn.org
Thu Oct 1 23:34:45 EST 1998


SOUTHERN HUMBOLDT LAW CENTER OF
RICHARD JAY MOLLER
P.O. Box 1669
Redway, CA 95560-1669
[phone number deleted] 

September 23, 1998 

District Attorney Terry Farmer
Humboldt County Courthouse
825 Fifth Street
Eureka, CA 95501 

Re: Homicide of David Chain 

Dear Terry, 

Representatives of Earth First (EF!), including some of the
nonfatal victims of A.E.[Ammon]'s deadly tree-falling, have
asked me to write to you for three reasons. 

First, we request that the crime scene at the location be
preserved and be carefully photographed and combed for
evidence, in light of the consistent statements given by
seven of the protestors, which is further corroborated by a
video made by one of them that day during their first of
several angry encounters with A.E. [Ammons] Detective Juan
Freeman tells me that photographs were taken, but that was
done before he took the statements of the other
eyewitnesses. It is necessary for an investigation to be
conducted to determine whether there is corroborating
evidence for the victim/witnesses's accounts, not simply a
view of the scene to try to confirm A.E.'s lies. My belief
that A.E. has lied is based on the press releases of P.L.,
which presumably are based on what A.E. told them. These
outrageous lies, first claiming that A.E. never saw any
protestors that day and then claiming he had not seen them
for well over an hour, show not only a consciousness of
guilt, but is a classic example of a witness who has been
proven to be willfully false with respect to one important
fact, which is a factor suggesting he cannot be believed
with respect to other important facts. Another outrageous
lie propagated by P.L.'s propaganda machine is that the tree
that struck David Chain was not the tree that A.E. had cut.
All the eyewitnesses say that is a lie. An objective
investigation is imperative. If PL's disinformation campaign
is not based on A.E.'s statements, then PL should be charged
with obstruction of justice and involuntary manslaughter,
based on their lies, showing a consciousness of guilt, as
well as other easily gathered evidence, as explained later
in this letter. 

Second, we request an independent investigator to be
assigned to the matter, one who has not basically made up
his mind. Detective Freeman told me that he still believed,
after he heard all the eyewitnesses, that the killing was
probably an "accident," though he claimed not to have made
up his mind. I strongly suspect he will write his report and
make his recommendation with the same mind-set he
demonstrated during the interviews. I sat in nearly five
hours of interviews with Detective Freeman, which were
taped-recorded. I watched Detective Freeman take notes,
except for the last witness, when he understandably did not
take detailed notes, because we were all exhausted. His
selective notes, however, are no substitute for the taped
statements or the video. When I mentioned the video, for
example, Detective Freeman immediately suggested that EF!
could have made it the day afterwards. Once you see the
video, it is obvious that A.E. is screaming obscenities and
threats at the protestors, and that the date and time that
the videographer mentions on the tape is not doctored. The
original video can be authenticated I am sure, but E.F! does
not exactly trust the sheriff's department with it, given
the circumstances. 

Detective Freeman's attitude during the interviews was more
like a defense attorney for A.E. than an objective
investigator, though he claimed he was simply playing
"devil's advocate." For whatever reason, Detective Freeman
appeared to be taking up A.E.'s defense. I do not doubt that
A.E. is sorry he killed David Chain. In fact, Carey, who
A.E. had befriended the day before, and had actually given
her his telephone number and asked her out to dinner, said
that A.E. fell down to the ground upon seeing David Chain,
and begged forgiveness. 

One further aspect of this case must be investigated -- PL's
role in the homicide. Every time one of the eyewitnesses
mentioned PL's possible complicity in David Chain's death,
however, Detective Freeman would firmly state that any
mention of PL's role in the homicide was speculative and he
did not want to hear anything about it. It is critical that
an independent investigator be assigned who can investigate
what PL's management told its employees and loggers to do
when confronted by protestors in the woods. This is
particularly apt as, according to Darryl Cherney, the
president of PL, John Campbell, told him about 1 a.m. on
September 1, 1998, in a pub in Sacramento after the
Headwaters legislation passed, that the loggers were getting
"on edge," and he was worried about some protestor getting
killed. He told Mr. Cherney he wanted the protesting to end,
now that the Headwaters deal had passed, so that wouldn't
happen. Moreover, there is a documented history of PL's
violence towards environmental protestors, with David
Chain's death only the culmination of an increasingly
violent response towards the protestors, including a
videotape of a tree that nearly hit and killed Julia
Butterfly, while she was in the redwood tree she is trying
to save. A look at Sea Horse Ranch, Inc. v. Superior Court
(1994) 24 Cal.App.4th 446, 456-459, will show that a
corporation and high level employees can be charged and
convicted of negligent homicide and involuntary
manslaughter. It is not enough for Detective Freeman to
believe such culpability is speculative. That is what a
detective is suppose to do -- investigate to either confirm
or rule out corporate complicity or responsibility -- and we
request that such an independent investigator with an open
mind be assigned to the case in addition to Detective
Freeman. 

I think it is also necessary to assign an independent
investigator who has a clue about what the law is with
respect to involuntary manslaughter. Detective Freeman told
me several times that he believed "negligent homicide"
required a "willful and wanton" act, and insisted he was
correct, given his vast experience with investigating
murders, compared to my 18 years as a lawyer having
represented more than 50 persons convicted of murder,
including a capital murder, and hundreds of others convicted
of virtually every crime imaginable. While I know that you
understand the law, I thought I would outline it for
Detective Freeman's benefit. 

"The offense of involuntary manslaughter requires proof that
a human being was killed and that the killing was unlawful.
(CALJIC No. 8.45.) A killing is "unlawful" if it occurs (1)
during the commission of a misdemeanor inherently dangerous
to human life, or (2) in the commission of an act ordinarily
lawful but which involves a high risk of death or bodily
harm, and which is done "without due caution or
circumspection." (Ibid.) Involuntary manslaughter
contemplates "negligent acts which are aggravated, reckless
and gross and which are such a departure from what would be
the conduct of an ordinarily prudent, careful person under
the same circumstances as to be contrary to a proper regard
for human life [or] danger to human life or to constitute
indifference to the consequences of such acts. (CALJIC No.
8.46.) [] Such criminal negligence is of a higher order of
culpability than ordinary civil negligence (People v. Penny
(1955) 44 Cal.2d 861, 879, and is measured objectively: if a
reasonable person would have been aware of the risk, the
defendant is presumed to have had that awareness. (See
Walker v. Superior Court (1988) 47 Cal.3d 112, 136-137.)"
(Sea Horse Ranch, Inc. v. Superior Court (1994) 24
Cal.App.4th 446, 454.) 

Finally, we request that your office charge A.E. with
involuntary manslaughter, as there is sufficient probable
cause to believe he acted "contrary to a proper regard for
human life." (Ibid.) Would a reasonable and "ordinarily
prudent, careful person" have fallen the tree under the same
circumstances? The answer to that question can and should
come from a jury, not Detective Freeman. 

Under the law, we believe there is no question that A.E.
should be charged at least with involuntary manslaughter in
light of the following facts. 1) The video indisputably
shows A.E. making violent threats, including falling trees
in the direction of the protestors, while raging with anger,
within two or three hours before he killed David Chain by
falling a tree on him. 2) The time estimates of all the
witnesses were that about 20 minutes had elapsed since they
last encountered and spoke with A.E., and no more than 30
minutes (one of seven witnesses said 30 minutes, others said
10 or 15 minutes), when they heard the chain saw stop. When
the chain saw stopped, the six protestors got up from their
circle after having eaten a bit of food, only to see a large
Douglas Fir tottering and about to fall. During the chain
sawing, the protestors could not interact with A.E., due to
the noise, and were waiting for the chain saw to stop to try
to persuade A.E. one last time to stop cutting the trees.
The protestors all sat in a circle, without an inkling that
A.E. was cutting down a tree on top of them. No one,
including Zoe, who was above both the group and A.E., heard
A.E. yell any warning that a tree was about to fall.
Unfortunately, according to witness Carey, when they got up
from their circle and saw the tree tottering, David Chain
appeared to freeze, having started to go with Carey up a
very steep hill, while the others were heading down hill.
Five others narrowly missed being killed -- within 10 feet
or so of the falling tree -- while David Chain was unable to
avoid the tree. 

I do not doubt and none of the eyewitnesses believed that
A.E. was intending to kill them. In fact, two witnesses said
that A.E. said he had not known they were there when he came
up to them as they were screaming after he dropped the tree
at them. But virtually all of the eyewitnesses believed,
based on A.E.'s words and actions that day, that he was
trying to scare them and was intentionally dropping trees in
their direction. If the eyewitnesses are believed, that
conduct is sufficient to constitute manslaughter. The
generally balanced, compassionate, nonvindictive statements
of the eyewitnesses and victims of A.E.'s recklessness are
in flagrant contrast to P.L.'s lies, presumably based on
A.E.'s lies about what happened out in the woods, before he
knew there was a videotape of him threatening to get his
pistol and threatening to fall trees towards the protestors.


In short, we expect this case to be charged at least as an
involuntary manslaughter. We have little doubt that if the
tables were turned and a reckless, life-endangering act of a
protestor had resulted in the death of a logger, a charge of
second-degree implied malice murder would be contemplated.
It is possible to analogize what happened in the woods with
life-endangering driving while intoxicated, which can be
charged as implied malice murder, but we are not asking for
such a charge. EF! and the environmental movement in general
are no fans of overcharging by D.A.s and are not seeking
retributive punishment for A.E., such as prison. That is for
a judge to decide. But we are outraged by P.L.'s
disinformation campaign and the apparent choice of A.E. to
hide behind these lies, and refuse to accept responsibility
for his criminally negligent action. His name has not even
been mentioned in the papers, even though he is not a
juvenile. 

If your office does not see fit to charge this crime, we
will seek help either through the A.G.'s office or the U.S.
Attorney's Office, as was necessary in the South in the
1960's, when law enforcement and juries sided with KKK
members accused of violence. I am confident that your office
will independently review the evidence in the case, preserve
the crime scene, assign an independent investigator, and
refuse to cave into what is probably enormous pressure to
ignore A.E.'s lies and adopt the official cover-up position
by P.L. We trust that you will charge this as any other
criminally negligent, if not reckless, homicide, and either
agree to a plea bargain in which A.E. accepts responsibility
for this unnecessary killing, or let a jury decide the level
of A.E.'s culpability. 
Very truly yours, 

RICHARD JAY MOLLER 

cc. Humboldt County Sheriff Dennis Lewis 
    California Dept. of Forestry 








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