Former Olympia resident accused as ELF arsonist to get new trial

The 9th U.S. Circuit Court of Appeals has ordered a new trial for Briana Waters, accused as an Earth Liberation Front arsonist. The court said the former Olympia resident's 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.

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.

Waters, a former student at The Evergreen State College, was convicted of two counts of arson following 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. Waters, who has maintained her innocence, also was ordered to pay nearly $6.1 million to reimburse UW and the state for the costs of rebuilding the center.

Waters, 34, a violin teacher from San Francisco, 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 in damage.

The government alleged during her trial that Waters obtained the vehicle used by the group.

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

Among those who testified against Waters were two members of the ELF cell, Lacey Phillabaum and Jennifer Kolar, both 37, who received leniency for 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 then taken that car from them.

Writing for the panel, Judge Wallace Tashima said U.S. District Judge Franklin Burgess made a “number of errors” during Waters’ trial, including allowing the jury to review “highly prejudicial” articles that Waters purportedly gave 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 that the government’s efforts to tie them directly to Waters was 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.

“Their repugnant and self-absorbed embrace of destruction is likely to have swayed jurors’ emotions, leading them to convict Waters not because of the facts before them but because she represents a threat to their own values.”

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 credit 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 might 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.

“We agreed with Waters that the district court’s statements to the jury were inadequate in light of the highly prejudicial nature of the publicity,” the appeals court wrote. “The stories not only may have caused a juror to ignore the evidence at trial and convict as an emotional reaction to these latest crimes, they may also have suggest to the jury that there was a link between the arson and Waters.”

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

Dennis Riordan, Waters’ San Francisco lawyer, did not immediately return a telephone call for comment.