Notes from February 25, beg. approx. 2:00pm, and from all day February 26,
2008
February 25
Defense counsel Bob Bloom opened its case by calling FBI Special Agent
Torres, then took a couple witnesses out of order, then resumed
examination of Torres. (See other note taker’s notes.)
Torres admitted that he did not draft his “302” interview report of his
December 16, 2005 interview with Jen Kolar on the date indicated (Dec.
18), but rather, began drafting it then and did not finish it until
February 9. He testified that the 302 went through a number of drafts
before Agent Halla, who was also present for the interview, prepared the
final 302. The defense maintains that the FBI has faked its 302, and in
fact destroyed the original draft because it would have reflected that
Kolar did not name Briana. Torres and Halla also took handwritten notes
during the interview, but their notes are discrepant. Whereas Torres
specifically recorded in his notes that Kolar listed herself and four
other people, and not Briana (and later reaffirmed that these were the
five people involved), Halla’s notes were much more vague. However, the
typed 302, completed nearly two months later – after the feds had fixed on
Briana as a suspect –falsely states that Kolar named herself, Avalon, “and
few others.” Thus, it appears the agents deliberately injected vagueness
into their 302, in order to try to preserve their false case against
Briana.
Torres bobbed and weaved, trying to claim that Kolar was vague and
uncertain during her interview. However, he acknowledged that in several
places in her notes, he wrote “uncertain” where she indicated she was
uncertain. On the other hand, he had no explanation for why he failed to
write “uncertain” where he was now claiming at trial that she had been
uncertain, such as who participated in the arson. Torres also testified
inconsistently about whether he had any independent memory of the
interviews or not, claiming often that he did not, but then asserting
repeatedly that he remembered Kolar was unsure about certain
identifications. At another point, he testified that his notes “are not a
transcript of the interview [but are] used to aid my memory later.”
However, they seemed to provide no aid to his memory whatsoever, as he
repeatedly gave equivocal answers when pressed for details about the
interview, and testified often that he did not recall.
Later (on February 26), Torres testified that he simply stopped taking
notes during one interview of Lacey Phillabaum, in order to avoid the
confusion which occurred during the Kolar interview. Pressed to say admit
that he was the one confused, not Kolar, he had no good answer. It thus
appeared that he realized his notes might undermine the case the feds were
trying to build, so he simply stopped taking notes. Similarly, Torres
testified that the FBI did not record any of its interviews, per its
regular policy, even though he admitted that a tape recording would have
avoided any confusion about the words actually spoken, and that the FBI
has the ability to record such interviews.
Torres testified that he and Agent Halla reported on other subjects by
consensus in their 302s, rather than reporting what actually occurred.
For instance, he testified that while Kolar described the vehicle used
during the arson as either a car or a van, as recorded in his notes, in
the 302 he and Agent Halla simply reported this as a “vehicle”. (The
government has since tried to make a case that Briana rented a car for use
during the arson, so the fact that Kolar had told them it might have been
a van would not have been helpful to the case they were trying to build;
thus, they simply eliminated this reference in their 302.)
(Needless to say, all of this bodes very ill for the integrity or
reliability of the FBI’s processes.)
February 26
Continuation of Direct Examination of Special Agent Torres:
Torres testified that he participated in a January 12, 2006 interview of
Kolar (but was not present for a January 6 interview). He testified that
she was shown photographs, including of Briana, and identified it as a
photo of Briana, but still did not state that Briana had participated in
the UW arson. Torres hemmed and hawed about whether he would have written
it down if she had said so, but when pressed, he could not articulate any
reason why he would not have done so.
Torres testified that on February 4, 2006, Halla interviewed Kolar on a
car ride from Olympia to Seattle, while Torres drove them, and Halla
showed Kolar more photographs. He showed her a photo of Justin Solondz,
and she said she did not know him. Torres testified that Kolar told the
agents that Briana and Lacey were not close friends (as the agents
reported in the 302 of this interview). However, Torres was forced to
admit that this too distorted what she had actually said, as recorded in
Halla’s handwritten notes: “I don’t remember Briana and Lacey together.”
Torres admitted that if it were true that Kolar had not seen them
together, then Briana could not have been involved in the arson.
Despite his extremely dodgy and evasive testimony, Torres was forced to
admit that Kolar had never once named Briana as a participant, until March
6, 2006, after the FBI had already fixed on her as a suspect.
Torres acknowledged that Kolar had made a tape recording of her car ride
interview with the agents, at her attorney’s behest, but he claimed that
the FBI does not have, and he has never heard, that tape. When asked to
explain why not, he suggested that it might be subject to attorney client
privilege. But he was forced to eat this absurd excuse and admit that
such a recording, not involving a conversation with an attorney, would not
be privileged. When asked if he would obtain a copy for the defense, he
said “that’s not my job.”
Torres testified that Briana had arranged a meeting among the participants
on the Evergreen campus, in a room accessible to the public, and claimed
that this constituted participation in the arson. (He was not questioned
about what the FBI claims was discussed in this meeting, whether it
actually occurred or not, or whether the FBI claims Briana was present.)
Later, a defense witness testified that only present students were
entitled to reserve such rooms, that they would have to identify
themselves and request a key in person, and that records would be kept.
Torres acknowledged that Kolar told the agents she believed Avalon may
have arranged for a rental car for the UW arson. He acknowledged that
Kolar did not say anything to the agents about scraping a parked car while
leaving the scene of the arson, as Phillabaum had testified, and he was
unable to provide any evidence that the Budget car which the government
alleges Briana rented for use during the arson sustained any damage.
Torres testified that he interviewed Lacey Phillabaum, along with Halla,
and prosecutors Friedman and Bartlett, in the presence of Phillabaum’s
attorney, on February 21, 2006. He admitted that while he expected
Phillabaum to make confessions during this interview, the FBI did not
record it, even though the FBI’s regulations provide for such practice.
He testified that in his 11 years, he has never done so. Moreover, he
testified that he simply stopped taking notes in the middle of the
interview (before Phillabaum began admitting her participation in events),
in his words in order to avoid the “confusion” which had resulted from the
discrepancies between his and Halla’s notes from their 12/16/05 interview
of Kolar. Defense counsel suggested that the feds were really just trying
to preserve their ability to manipulate evidence and testimony, and limit
impeachment, and this is the picture that emerged.
Torres testified that Phillabaum informed the feds that Briana and Connor
(i.e. Solondz) had broken up, but could not say whether the feds asked her
this, or whether she volunteered this information. He said Phillabaum
informed them that Chelsea Gerlach was competitive with her related to the
fact that Gerlach had previously been involved with Stan Meyerhoff.
He testified that Phillabaum told them that both Briana and Solondz acted
as lookouts during the UW arson, in contrast with the government’s
allegation that Briana alone acted as a lookout.
He testified that Phillabaum told them while crouching outside the
Horticulture Center, she was concerned about the presence of a bicycle,
and discussed this concern on-scene with Kolar. This highlights a
significant discrepancy in the accounts of the two informants, as Kolar
testified that she did not even see Phillabaum there.
Torres acknowledged that in all the searches of the various defendants’
property, the only thing they found which even referenced Briana was a
footnote in a document referencing her documentary Watch, about the
campaign to prevent clearcutting on Watch Mountain.
On cross examination of SA Torres by AUSA Bartlett, Bartlett had him read
the verbatim “proffer agreement” from the February 21, 2006 interview with
Phillabaum, containing various terms. The purpose of this was unclear.
On cross, Torres also testified that before Kolar named Briana, her
attorney, Mr. Martin, had called AUSA Friedman and told him that his
client, Kolar, now suddenly remembered that Briana was involved in the
arson.
The defense spent the remainder of the day calling a series of witnesses
who know Briana Waters personally, and who testified to her good character
and peaceful nature. These witnesses included an eloquent, native
American man whom she interviewed for her documentary, who said that he
found Briana to be so trustworthy and of such integrity that he introduced
her to several tribal elders, which was a very big deal. He testified
that in extensive discussions, he and Briana agreed that peace could only
be achieved through peaceful means. Two people testified passionately
that Briana baby sat their children, and they trusted her completely with
the lives of their children, and that they also developed good friendships
with Briana. People testified to her skills as a violinist. The gent who
helped her edit Watch testified that they worked extensively together on
the project. A woman from whom Briana sublet a room in Berkeley testified
that she found Briana to be so warm and such a good peacemaker and problem
solver, and that they became close friends. Briana’s Evergreen professor
and supervisor of her independent film project testified that Briana was
among her brightest students of all time, and extremely pleasant to
supervise and work with. Together, these witnesses provided a portrait of
an extremely intelligent, warm, trustworthy, and peace-loving woman, who
was busy with many things, not least working on her film, not planning or
committing an arson, in the time period leading up to it.
The government declined to cross-examine most of these witnesses, but did
fence about Earth First! values with a man who participated in
environmental organizing with Briana. He testified that Earth First! is
not top down, is not a group, and that people interpret for themselves
what it means to organize as an Earth First!er. When questioned whether
Earth First! is radical organization, as it claims in some literature, he
explained again that Earth First! is not a monolith. He then testified
that he considered his and Briana’s tactics radical, but not extreme –
radical in that they were able to unite historically polarized camps, i.e.
environmentalists and timber industry workers, and achieved real success.
Questioned about monkey-wrenching, he said that he and Briana disavowed it
in their campaign.
The woman who owned the house and garage, with her then husband Ocean,
where the government claims the UW arson conspirators created their “clean
room” to assemble the materials used for the arson, testified that she
allowed Briana, her friend, to stay in the garage, free of charge. She
testified that she and Ocean did not move into the house right away, but
rather, began major renovations to make it accessible for Ocean, who is
confined to a wheelchair. She testified that during this construction,
involving, she estimated, 10-15 workers over time, she would visit
regularly, and unannounced, to check on the progress of work. She said
that she never observed anything untoward occurring there while Briana was
living there, and certainly never observed anything that looked like a
clean room. She testified that the garage was full of debris and that
water leaked through the roof, and that the walls were rotting. On cross,
she admitted having informed the prosecutor during an interview that she
rarely visited the garage when she visited, and therefore, would not have
known if Justin Solondz was living there too, but that he was not invited
to live there. On re-direct, she reaffirmed that she did not announce her
visits.
A woman testified that she participated in a two-day meeting with Briana
in Portland, during the first week of February 2001 (probably Feb. 3 and
4), in which she unequivocally remembers that Lacey was also present – in
contradiction to Lacey’s testimony that she first met Briana much later.
Throughout the afternoon, prosecutors objected repeatedly, on fallacious
grounds (most commonly that the questions were argumentative, or that the
questions, or witnesses, were cumulative), interrupting and disrupting the
defense examination. This spawned various hearings outside the presence
of the jury, and a certain amount of tension with the Judge, who often
seemed not to understand exactly what was happening. The Judge would
often repeat the prosecutor’s baseless objections back to the defense. At
times, the colloquies seemed surreal. Defense counsel pleaded for leeway
to put on its case unimpeded, as the government had been allowed to do –
including especially in order to counteract all the character
assassination which the Judge had allowed the government to inject against
Briana earlier in the trial – and made major headway as a result. Court
adjourned with the Judge taking under advisement the defense’s request to
introduce and play for the Jury Ms. Waters’ hour long documentary, Watch.
After never mouthing an objection to the film, throughout the entire case,
and after acquiescing in front of the jury, the government suddenly
reversed itself and objected during the break. The Judge will likely
decide this issue first thing in the morning.
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