Report from Sentencing for Kendall Tankersley, 5/31/07
--------------------------------
Arguing for the gov't was John Ray.
The gov. fist put on Jerry Bramwell of Medford, retired president of the now defunct US Forest Industries. He was shown photos of the arson and asked to identify what was in the photos. They were pictures of burned rooms and floor plans of the building.
He was given the communique by the Medford Mail Tribune.
He said the damage was $980,000. The feds corrected him to say that it was $990,220. He agreed. The insurance paid it except for their $100,000 deductible.
When asked if the fire was a surprise, he said yes, at first, but once he heard it was arson he was not surprised. There was a protest at the office 6 months before the arson.
He stated that his company mainly had contracts with the government, more so in the West. 85% of their contracts in Colorado, 75% in the West. He said they consume wood and then replace it with wood.
When asked about impacts other than financial, he said: When the building was still burning/smoldering, it was a dark time, dark mentally. They (employees and owners) wondered "Is my life in danger?" "Do I have a job?" They sat down and said to themselves, we are going to continue our business, we are going to continue what we are doing. It turned out to be the BEST THING THAT HAS EVER HAPPENED IN HIS CAREER. The computer company (HP) came down to set up a new system. The phone company hooked them back up. He then let us know that this was a different location in White City. Their (employees and owners) attitude was: If we let this get us down, they, whoever it was, have won and we have lost. So on Monday morning, his sales people got on the phone and called all their customers to tell them that they were still in business, that their computers would be down until 10 am, so the customers would get 2 hours off from billing (ha, ha). Everyone offered to help, customers, competitors, etc. It was pretty gratifying. Their (USFI) feeling was to not change their routine. They (family and business) did not change their way of doing things. Thought about it a lot, but they could not live in fear. Can't live like that.
Witness excused.
Gov. calls Det. Harvey. He has been on the force (EPD) for 18 years. Was primary investigator of Operation Backfire. All he did on the stand was to confirm that the DVD they were about to show was one he was familiar with. It had his initials on it. The DVD was a clip from Cascadia Alive!, an episode Kendall was on. While it did not seem that damming, the gov. used it to show that Kendall endorsed property damage before she committed arson. On the show she talked about vandalism directed at some local Eugene businesses. She said that people were pissed at the gentrification of the neighborhood. Said that the question was not whether these tactics were acceptable, but why did people take such actions.
Witness excused (he never said anything else).
Gov.: The statement was made in some court document (I don't know which), that Kendall would not have become involved if she had never met Jake. However, 3 weeks after her appearance on Cascadia Alive! she went with Jake to California and burned a couple of trucking companies (one was Redwood... something). Three months after that, her and Jake attempted to burn USFI (and then he did).
Gov.'s 3 points:
1. Kendall and Jake used an unstable device that was not rendered inoperable after 3 days.
2. Larry Dean Asher who discovered the fire, ran to the building and kicked over one of the unburnt buckets of fuel, which then caused it to ignite. Fortunately he was not hurt. $1 million in damage. Three weeks later they sent communique, which stated that it was "payback for wild forests lost..." Wild forests = national forests, particularly when you consider how much timber came from federal lands. Gov. will accept court's ruling in Tubbs about USFI arson not being aimed at government, but that means that the crime calls for the 60-month mandatory minimum sentence. Kendall was in contact with Tubbs as late as '99.
3. She has shown dramatic rehabilitation and growth since her actions. She left the movement in '99. She got a BS in Molecular Biology. She was headed to medical school. When she was apprehended, Ray and a female EPD officer, Decoyer?, were in Flagstaff for that. Decoyer stated that Kendall was terrified about cooperating at first, but after she heard from or read a letter from Foreman (Ferman?) (or once he got involved?), she cooperated fully.
Deterrent effect:
The government said that since the court's ruling were "posted on Indymedia within minutes" and that since there was a packed courtroom, or at least there was a few days ago, that the sentences are the biggest and most important message the court could send. Despite Dr. Samuels' earlier testimony that "...true believers aren't going to change in that respect... punishment will not deter, it will only inflame...," sentences carry the strongest message.
If she is not given 60 months, she should be given 51 due to SUBSTANTIAL ASSISTANCE.
Government rests.
Defense:
They first put on one of her profs from HSU, Patricia Sierring. She has known Kendall since '99. Took Kendall and her child in when she broke up with her alcoholic and abusive husband and moved back to Arcata. She has been her babysitter and dog sitter, for her and others. Wants to be a doctor. Amazing young woman, incredible potential, yada yada. Sending her to jail would just undo her work and take her back to where she was. She cried and others cried.
Then came another HSU prof, Varkey. Been at HSU for 14 years. is the pre-med adviser. Met Kendall in one of her classes. Approached her when he heard she was considering med school. Said Kendall lives for helping people. Student any teacher would be proud to have. Was shaken by the news of her arrest, but is certain she would never do anything to hurt anyone.
Then came Elizabeth Land who works at Planned Parenthood in Eureka, was Kendall's supervisor, co-worker and friend. Kendall came on as a volunteer escort, then hired to do patient assistance, by 2002 Kendall was a clinic assistant. Kendall is committed to positive social change. Is sensitive, aware, holistic, pursues education with passion, generous, beautiful human being, nonviolent, etc. Tears.
The defense attorney then admitted again that he had not been in court for the other hearings. His points:
1. Legalities: TE should not be utilized. He only was present for the TE hearing, felt that their views were not represented and that is why they submitted a written statement. Despite earlier rulings, TE should be judged per individual. Gov. argued for TE for USFI in Tubbs' hearing (but did not get it), but the action taken against USFI and the communique state that the action was against industry, so TE does not apply.
2. Mandatory Minimums: Does not apply. The gov. asked for a departure from the 60 months, to 51 months. But the key here is that this opens the door for downward departure, so the judge could go lower, much lower. Mandatory minimums are Draconian. 60 months to 51 months is one level of downward departure, BUT THE GOV. ORIGINALLY SUGGESTED 14 LEVELS DOWNWARD DUE TO SUBSTANTIAL ASSISTANCE. TE not applied properly. Guidelines are only guidelines. Kendall is the least involved person in the group. Minimal role in offense. Should get at least 4 levels downward. Should stay at category 1 for not criminal record which would be a sentence of 15 to 21 months, before factoring in her substantial assistance.
Her lawyer talked in disparaging terms about how the guidelines make you go up then down and up and down. That the sentencing guidelines are a useful exercise... (At this point Aiken interrupts him to point out that the guidelines are required not just useful.) He says that in the 10th Circuit where he practices law, the sentencing guidelines are a "prince amongst frogs."
He said that the $150,000 bail put up by Kendall was her money and that money should be put towards restitution. The $100,000 she put up at her detention hearing was her families' and should be returned to them.
Her life has changed in the past 8 years. She is unique not only among the other defendants (less crimes, less involvement), but also unique to him and he has been practicing law for 35 years.
Aiken interjects, speaking to the defense attorney: "They are called fugitives, and we have them here too."
Defense continues: Kendall had limited role for brief time only in '98. Many of the actions happened before that and went on after that. In '99 she disassociated herself with illegal activities. Had nothing to do with the people who went on to do actions. Withdrew from the conspiracy. Moved. Made new life. Became student. Would be in med school if not arrested. The woman who stands before you today bears little resemblence to the girl who committed the actions in the past. No recurrence. Has rehabbed self more than any client he has seen in years.
Deterrent affect on others? The court needs to look at the offense, the criminal history of the defendant, and how it will effect the community. Her circumstances are unique. She walked away from these types of actions. THE COURT SHOULD RECOGNIZE AND SEND THE MESSAGE THAT IF YOU WALK AWAY, YOU SHOULD BE AWARDED. Kendall should be jailed for only a brief period if at all or given future penalties if she violates terms of release.
Defense rests.
Aiken seemed annoyed that the defense attorney was not in court for the other hearings and that he was from another federal court (10th Circuit).
After break where Kendall hugged and laughed with some supporters and shunned others, and shook hands with Ray and thanked him, Kendall gave her statement, which went something like this:
She was grateful for the opportunity to speak to the court and wanted to use the time to publicly accept responsibility for her actions. She wanted to apologize to Mr. Bramwell (even though he had left by then) and the neighbors of the building. Grateful no one got hurt. She knows people were distressed by her actions. If she worked there and arrived at work to see the destruction, she would have been scared and upset. She has profound regret. A few weeks after the action she felt profound regret. She changed her life to change the profound effect she had on the planet. She did not want arson to be her legacy. She made a lot of people have fear. Loggers call the ELF warriors, but they are not warriors. The ELF's actions undermine positive social justice work. Hard work and dedication is how you make positive change. She will pay restitution. She will serve her sentence. She will come out committed to positive social change. She then cried a lot when she apologized to her mother and her family and the families she affected in Medford. She apologized to the court for taking up its time.
Aiken:
Her job is made easier by the guidelines for imposition of sentencing, the grid, the numbers and calculations. There is a different process but they were all people, in the 10th Circuit or anywhere. The four parts of sentencing: punishment, rehabilitation, deterrent, and community safety. Give meaning to certain factors, similarities and differences. She is obliged to give a sentence.
Caring for others is what it is all about, whether as a doctor or doing hospice care.
She attended a seminar with Justice Kennedy and Justice Briar. They said that what is most important in sentencing is to "Do the right thing." There are no perfect answers.
Kendall should come back to the court and say "this is what I have done to make change."
She (Aiken) is honored to be given the opportunity to do the best she can do.
She then gave some Elanor Roosevelt quote about "Do something every day that scares you, is hard for you..." She bemoaned being in the courtroom with so much squandered talent... all these lost days...
Your mother gave you "roots and wings."
Mr. Bramwell was a dignified person who brought himself up, fed his family and others and that just because you do not agree with the way he made his money, you have no right to burn down his office. She was moved by him. If you disagree with the way he made his money, the proper way to address that is through the legislature, to vote, to litigate.
The process has been hard on everyone in the courtroom.
You need to accept responsibility. REMORSE NEEDS TO BE GENUINE. Kendall's was. Aiken will be around when she gets out.
She then told a story about some kid from drug court. He was involved in identity theft, which he was especially good at when he was high.(!) Now he has turned a corner, is helping people.
Bad choices limit options. She wants to be in a country that offers kids the ability to talk about their dreams, but she feels like all she can tell them is that bad choices limit your options later. You can make a choice.
Her job is to make people unhappy and she accepts that.
She then read from a book by Marian Wright Adelman (a book she reads from often). How lucky we are (book title?). Lesson #5: Don't be afraid of taking the risk of being criticized. It does not matter how often you are knocked down by criticism. What matters is how often you pick yourself up after criticism... etc., etc. The book quote then has a quote in it from somebody (another Roosevelt?) about "dust, sweat and blood... cold and timid souls..."
Aiken then went on to say how Kendall was raised in a house with two lawyers. Let your parents help you. SHE REALLY ADMIRED THE FACT THAT TWO PROFS CAME TO TESTIFY ON KENDALL'S BEHALF. IN THE REAL WORLD, TEACHERS ARE THE REAL HEROES.
The door is open for you, unlike many people in this courtroom for which the door will never be open.
She then went into the complex calculations and numbers juggling that they do to determine sentencing (which she says she does each day right before imposing the sentence), intermixed with comments. The communique sent a devastating message. She could impose a sentence of 78 to 97 months. Kendall is lucky. Next time crimes like this come before her court, the sentences will be much stiffer. Of course it makes a difference if the action was aimed at the government. We need to respect the government and its laws. But she does NOT want to send the message that "you can't torch the gov., but it is okay to torch industry."
The gov. then asked for 4 levels of downward departure for substantial assistance, 51 months.
Aiken again: There has been tremendous lawyering on both sides, everyone brought their A game. But as a judge, I know better. She recognizes people who step up and do the right thing. They will be rewarded. She acknowledged Kendall's extraordinary cooperation. Stan needed to talk, but she is not saying that everyone should talk w/o an attorney. Kendall gave extraordinary cooperation. She did take herself out of the group.
And for that she was rewarded with 46 months in jail (at this point, Kendall's mom starts crying loudly), plus full restitution and 3 years supervised probation.
PDF
No comments:
Post a Comment