Appellate court overturns conviction in 2001 UW arson

The 9th U.S. Circuit Court of Appeals has ordered a new trial for accused Earth Liberation Front (ELF) arsonist Briana Waters, saying her conviction for the May 2001 arson at the University of Washington Center for Urban Horticulture was riddled with judicial errors.

The three-member panel unanimously sent Waters' case back to the U.S. District Court in Tacoma for a new trial.

"While the evidence against Waters may have been sufficient to sustain her conviction, our review of the record does not leave us convinced that her conviction was fairly obtained," the judges wrote.

The judges found that the late U.S. District Judge Franklin Burgess repeatedly abused his discretion, allowing prosecutors to present evidence that was "extremely prejudicial" to Waters, including documents advocating violence, without adequately tying the content of the documents to her. The judges also said the judge failed to question jurors about whether they had been exposed to a potentially prejudicial news story that came up during her trial.

Emily Langlie, a spokeswoman for the U.S. Attorney's Office, said the opinion was being reviewed and the office would have no comment Wednesday.

Seattle lawyer Mark Bartlett, who prosecuted the case as the former first assistant U.S. attorney in Seattle, told The Associated Press he was disappointed with the ruling. "The conviction was not only based on the evidence, but based on a fair fight in the courtroom," he said.

Allegations

Waters, 34, was convicted of two counts of arson after her 2008 trial in Tacoma and was sentenced to six years in prison. She was acquitted of several other charges, including a count of manufacturing a destructive device, which carried a mandatory 30-year prison sentence.

A violin teacher from San Francisco, Waters was one of five alleged members of the ELF cell that the government said firebombed the UW offices of researcher Toby Bradshaw, who they mistakenly believed was genetically engineering poplar trees. The fire caused more than $6 million damage.

Two other women pleaded guilty to the arson while a fourth suspect fled the country and the fifth committed suicide while in jail.

Among those who testified against Waters were two key members of the ELF cell, Lacey Phillabaum, 37, and Jennifer Kolar, 37, who received leniency for their testimony. Phillabaum received a three-year sentence and Kolar got five years.

Phillabaum testified that Waters had obtained a rental car that was used to take the sabotage team to Seattle from Olympia. Waters' cousin testified that he and his wife had rented a car the weekend of the UW arson, and that Waters had taken that car from them.

Criticisms

Writing for the panel, Judge A. Wallace Tashima said Burgess made a "number of errors" during Waters' trial, including allowing the jury to review "highly prejudicial" articles that Waters purportedly gave to Kolar along with a note. Waters' fingerprints were found on the note and some articles.

Burgess died of cancer in March.

The appeals court found the content of the articles — which were emphasized by federal prosecutors at trial — was inflammatory and the government's efforts to tie them directly to Waters were weak.

"We believe that the appropriately skeptical eye would have excluded the articles from Waters' trial," the opinion said. "... The articles were highly prejudicial. While most espoused anarchist political theory, a number advocated violence in no uncertain terms," including attacks on Wall Street, Disneyland and the Statue of Liberty.

At the same time, Burgess had prevented Waters from showing jurors a documentary she had worked on espousing nonviolence, thus "compounding the error" of admitting the articles while "depriving Waters of her opportunity to demonstrate that her purported belief in nonviolence was genuine ... " the court ruled.

The appeals court also said Burgess committed another serious error by not inquiring whether jurors had read "highly prejudicial" news stories published during Waters' trial after ELF claimed responsibility for an arson that destroyed several "Street of Dreams" homes in South Snohomish County in March 2008. There was speculation at the time that ELF may have timed the arson to coincide with Waters' case.

Burgess turned aside defense requests to question the jurors about whether they had seen the coverage. Instead, the judge admonished the jurors to not read the stories, or ignore them if they had.

The appeals judges rejected Waters' claim that the government conspired against her by withholding evidence that one of the key witnesses against her had not initially identified her as being in the cell that attacked the UW horticultural center.

Dennis Riordan, Waters' San Francisco lawyer, suggested that the unanimous opinion and the fact that the conviction was reversed on several grounds will make it difficult for prosecutors to seek a rehearing or have the case certified for appeal to the U.S. Supreme Court.

He said he will ask that Waters be released pending further proceedings as soon as the case is sent back to the district court. He said Waters has been in prison in Connecticut, which has made it "extremely difficult" for her to see her 5-year-old daughter, who lives in San Francisco.

ELF on a spree

Waters was the first of 18 people indicted on charges of involvement in an ELF sabotage and arson spree between 1996 and 2001 against targets deemed a threat to the environment or animals. Damage to targets that included a slaughterhouse, timber-company headquarters and a ski lodge at Vail, Colo., was estimated in the tens of millions of dollars.

Also charged in the UW arson were William C. Rodgers, who committed suicide in December 2005 in an Arizona jail, and Justin Solondz, Waters' former boyfriend.

Solondz, 30, fled the country and was later convicted of drug charges in November 2009 and sentenced to prison in China. After serving his three-year sentence, Solondz, who was on the FBI's most-wanted list, will be deported to the U.S., where he faces prosecution for the ELF arson spree.

The UW's new $7.2 million Center for Urban Horticulture reopened in January 2005.

Mike Carter: 206-464-3706 or mcarter@seattletimes.com

Seattle Times news researcher Miyoko Wolf contributed to this report, which includes information from Times archives and The Associated Press.