Be careful what you say

Tony Serra is a defense attorney straight out of central casting: hunched a bit by age; long, wispy gray hair not completely under the control of a ponytail band; necktie askew; theatrical hand gestures and singsong speaking style. He took nearly three hours to give a closing argument that could have been delivered in about 45 minutes.

But on Monday afternoon, he posed a vitally important question: "Why are we here?"

It was a rhetorical question, asked of jurors in federal court. Serra wanted the question to be echoing in the jurors' minds when they set about deliberating the case before them: "Why are we here?"

The short answer is that "we"--the jurors, the lawyers, the judge, et al.--were there to decide the case of the U.S. government vs. Rodney Coronado. Coronado is a militant environmentalist and animal-rights activist on trial for allegedly inciting a crowd of about 100 people in Hillcrest four years ago to commit arson and teaching them how to do it. The jury began deliberating Monday at about 4:15 p.m.

Coronado, who served roughly four years in prison for torching a number of fur farms and has sunk whaling vessels in Iceland, flew in to San Diego on Aug. 1, 2003, to speak to a public gathering about his experiences as a very active activist, just hours after other very active activists burned a large condo complex nearing completion in University City to the ground. A banner was found at the scene, reading: "If you build it, we will burn it. The ELFs are mad." ELF is Earth Liberation Front, one of several hard-line environmental groups with which Coronado has worked.

Coincidence? Maybe. It certainly attracted the attention of the San Diego Police Department and the San Diego County Sheriff's Department, which each sent an undercover officer into the hall where Coronado spoke.

I was there, too. I recall finding Coronado fascinating, what with his indigenous perspective on wildlife and the natural environment--he's a member of the Pasqua Yaqui nation--and his views on how destruction of property (fur farms, animal-testing labs, whaling boats, development on sensitive habitat) has become necessary amid the failures of mainstream environmentalism.

When I learned that Coronado had been arrested based on the content of his talk, I was flummoxed. I didn't recall him demonstrating how to build a firebomb, as was alleged. Turns out I left too soon that evening. I stayed for the entirety of his prepared remarks and took off after a Q&A session started. I missed the question, asked by young activist Cari Shaw, that ultimately got Coronado in hot water. Shaw, whose husband, David Agranoff, organized the event and whose house Coronado visited before his talk, asked Coronado if he could explain how to "assemble an incendiary device."

He could, and he did--not one but two types of devices, an elaborate one that he used to build and a cruder type (made using a plastic jug, gas or kerosene, a sponge and a couple of incense sticks) that he said was probably used in the University City fire. It was the second type that got Coronado in trouble because he used as visual aids a half-full jug of apple juice that happened to be sitting on a nearby table and a VHS tape, as a stand-in for a sponge.

Coronado was arrested two-and-a-half years later, in February 2006, and indicted for breaking a law created in 1997 to combat domestic terrorism and rein in dissemination of online bomb-making instructions. The law essentially prohibits anyone from teaching or demonstrating how to build an incendiary device with the intent that the learner would act on the information and commit a violent federal crime.

It's true that Coronado gave his audience in Hillcrest rudimentary instructions on how to turn a jug of fuel into a raging inferno; he doesn't dispute that, and there are video and audiotapes to prove it. What he says he didn't do is arrive with malicious intent. And that was the hard part for the government's attorneys.

You can't tap someone's mind to find out what he was thinking at any given time, so the court allows prosecutors to show jurors circumstantial evidence--in Coronado's case, that meant excerpts from a speech he gave at American University in Washington, D.C., in January 2003; an interview he gave Ed Bradley on 60 Minutes; and two letters he wrote that were found on his computer. They showed Coronado to be an articulate, passionate, uncompromising defender of wildlife who'd long since parted ways with the notion of effecting change lawfully. In the speeches and letters, he referred to action-oriented activists as "warriors" in defense of the Earth and its powerless inhabitants. At American University, he demonstrated assembly of a homemade fire starter using a jug similar to the one he grabbed from the table in San Diego.

In one of the confiscated letters, Coronado admits to teaching people how to make firebombs and promises to do so "until the day I die." In the 60 Minutes interview, which aired three months before he was arrested, Coronado acknowledged encouraging people to follow in his footsteps. "Encouragement through explanation and demonstration of my own actions," he told Bradley. "I'm asking for people courageous enough to take those risks for what they believe in."

And there's the intent, Assistant U.S. Attorneys John Parmley and Michael Skerlos argued. (Skerlos added a bit of conjecture during his closing rebuttal Monday, saying he finds it hard to believe Shaw's testimony that she asked Coronado the fateful question on a whim or that an apple-juice jug just happened to be sitting there accidentally.)

But Judge Jeffrey Miller raised the bar higher for the prosecutors last Wednesday, informing both sides that he would tell jurors that they must find that arson was "imminent" and "likely to occur" due to the force of Coronado's words. "The rubber meets the road, I think, when it comes to jury instructions," Miller said, later suggesting that the jury would have to do some heavy lifting. "Imminence," he said, "has not really been defined by the courts."

Citing numerous legal precedents, Miller made it clear that he believes the law, as written, is half-baked. If Coronado beats the rap, after thanking his lawyers he should fire off a letter of gratitude to Judge Miller.

Prosecutors, chagrined, challenged the ruling, to no avail; the defense team was as satisfied as it could be, having wanted the case thrown out as violative of the Constitution.

In his closing rebuttal, Skerlos argued that Coronado needed to reach just one of the 100 or so people at the Hillcrest talk to directly incite a violent crime, and an arson had been committed early that morning--together, he said, those factors created an imminent situation.

Serra, the gesticulating defense attorney, had seized on "imminent," repeating it over and over again and coupling it with a similar-sounding word, "immediate."

While the government focused its prosecution on Coronado's words, the defense zeroed in on the audience, arguing that its role can't be underplayed. "If the person has time to reflect," Serra said, "it becomes then the actions of that individual," and not a response to what Coronado said.

He added that if Coronado's intent was to incite violence, wouldn't it have been more efficient for him to meet privately with activists predisposed to extreme tactics? After all, Coronado knew the authorities were likely monitoring his public appearances.

The case against Coronado fits neatly into the post-9/11 struggle between civil rights and the so-called war on terror--right up there with warrantless wiretaps, the Patriot Act, the Military Commissions Act and government infiltration of activist groups--and it's part of a larger campaign by the federal government to ramp up its war on so-called eco-terrorists, as was reported by Dean Kuipers in CityBeat's May 30, 2007, cover story. But it's the Coronado case in particular that could set new precedent in the free-speech arena.

There was nothing in Coronado's Hillcrest talk that came remotely close to incitement to violence; it was a retrospective of one man's career and a window into the philosophy behind his actions. Prosecutors had to string together words that Coronado spoke at other times in order to make the necessary case for intent. So, for the audience in Hillcrest to experience the kind of imminence government attorneys are arguing, they would have to have been privy to those words.

Civil rights lawyers say there has to be a much more solid connection between the speech and the threat of violence. Otherwise, the chilling effect on free speech is monumental.

Prosecutor Skerlos said Coronado's Hillcrest audience didn't have to charge outside with pitchforks for a crime to have been committed. He cited the defendant's interview on 60 Minutes, in which Coronado said it can take weeks of reconnaissance and planning to pull off an arson that would destroy a target but not hurt anyone.

But Coronado wasn't arrested for his alleged crime until two-and-a-half years after his speech. There was no evidence whatsoever that his words had any effect at all on his audience.

"Why are we here?" Serra asked jurors on Monday.

Coronado was arrested while Carol Lam was still the U.S. Attorney in San Diego, 10 months before she became nationally famous for being fired by Alberto Gonzales and Co. Lam and the FBI have so far been unable to pin the University City arson on anyone. And with no arrests in a highly visible case--one that Ed Bradley, on national television, called "the biggest act of eco-terrorism in U.S. history"--it's hard not to conclude that this trial is an attempt to hold someone responsible for something.