Send The Message

by Bruce McEwen, July 21, 2011

At the sentencing phase of Timothy Elliott’s murder trial last week, a Pomo woman asked the judge to “send a message to the rest of the community that the life of a Native American is worth as much as any other American.”

She shouldn't have to say that, but there it is, a statement of the Mendocino County reality because, except for the judge and other officers of the court, nobody but Native Americans has shown any interest in the murder of Sam Billy and the trail of Timothy Elliott for killing him. The pale faces in the courtroom, of course, are paid to be there.

Not only was the trial ignored by local media, except for us almost invisible anymore, but the lengthy hearings afterwards — the successful attempt by Elliot to replace his lawyer, the often challenged public defender Linda Thompson, and the accusation by Elliot that he didn’t get a fair trial — were also ignored.

On August 27, 2010, a jury found defendant Timothy Slade “Coke” Elliott guilty of second degree murder in the stabbing death of Samuel Billy. This sad event occurred late the night of on September 26, 2008 on the Hopland reservation, and Coke didn't get his nickname from Coca Cola.

Elliott was represented by Public Defender Linda Thompson, a lawyer with probably more motions for her removal on her record — “Marsden motions” — than any other public defender in the state. On December 10, 2010, Judge Richard Henderson appointed Attorney Jan Cole-Wilson to represent Elliott, directing Cole-Wilson to review the trial record and evaluate Elliot's request for a new trial. On April 7, 2011, Ms. Cole-Wilson filed a motion for a new trial and on May 27th the hearing was held.

Off hand, I can't think of a motion for a new trial ever being granted in Mendocino County no matter how incompetent, how derelict the defendant's attorney has been.

Ms. Cole-Wilson made her case that due to shortcomings in the defense presented by PD Linda Thompson, Elliott did not get a fair trial.

Judge Henderson said he would review the transcript and make his ruling, which he then issued on June 23, 2011.

The following facts were established by the undisputed evidence based on the court’s review of the trial transcripts and the physical evidence: Sam Billy was stabbed to death in the early morning hours of September 26, 2008 at an apartment complex on Sanel Drive within the Hopland Rancheria.

On the night of September 25-26 approximately 20 to 30 people were present in a parking lot for a birthday party and the celebration of a baseball team’s victory. Throughout the evening people milled in and out of some of the apartments surrounding the parking lot, drinking and chatting. Several scuffles broke out and both the Tribal Police and Sheriff’s deputies responded to complaints of excessive noise and other disturbances.

Around 3am a number of people still gathered in the lot began insulting each other and then challenging each other to fight. There was pushing and shoving until young Sam Billy was seen to stagger and fall to the ground. Several people rushed to Billy’s aid, others fled the scene.

Billy had been stabbed once, deep in the stomach. With police soon on scene, he was taken by ambulance to the hospital and died later that day.

Timothy “Coke” Elliott was subsequently arrested and charged with murder. He had been seen in the immediate vicinity of the stabbing and then he was seen running away immediately after the stabbing.

Isaiah Vasquez was the eyewitness who saw Coke Elliott “punch” Sam Billy then run away. Isaiah was nine years old when he testified at the trial, but he had only been seven the night Sam Billy was killed. The boy said he’d been up most of the night playing video games and watching movies. He saw the incident involving Elliott and Billy out a window when he went to check on his sister who was sleeping upstairs. He said Elliott called out to Sam Billy’s brother Derek Billy, “Look at your man over there fading, down on the ground.”

Public Defender Thompson was totally at a loss in her battle of wits with the child. He came across as entirely lucid and truthful while she came across as a walking Marsden Motion.

Isaiah’s recollection of the events of the night were occasionally confused, but he easily picked Elliott’s picture out of a “six-pack” photo ID line-up. The fact that Isaiah did not know the name of the person whose actions he described does not taint the identification. He later learned from his mother that it was Coke Elliott.

Another witness was David Primeaux, who described himself as a cousin and friend of Sam Billy. He said he saw Elliott strike Billy in the area of his solar plexus with an upper-cut motion and heard Billy say he’d been stabbed. But Mr. Primeaux said this happened in a different location than where Isaiah and the other witnesses said the altercation took place. Primeaux was not confronted with this discrepancy and no explanation was offered as to why he wasn't challenged. The defense by Thompson suggested that this testimony had been arranged by the DA with a promise to Primeaux that he would not be extradited on outstanding warrants to Okalahoma. The prosecution denied there was any such deal, and Judge Henderson found the testimony to be generally credible.

Wilma Elliott is Coke Elliott’s cousin. She lived in one of the townhouses near where the incident took place. She did not see the actual stabbing, but stated she had earlier restrained Elliott from going after another person with a knife. She came out of her townhouse after hearing a scream and saw Sam Billy on the ground in the same area described by Isaiah Vasquez.

Bettina Torres also lived in one of the townhouses. She was awakened by the noise and looked out her window to see Derek Billy and Coke Elliott in a shoving match. She also saw Sam Billy wander off to a corner of the parking lot, stand there momentarily, then simply fall to his knees. Then she heard Elliott make a statement to Derek Billy about letting his brother die. After Coke Elliott and Gabe Mendoza left the scene she assisted Sam Billy and called 911.

Judge Henderson states that Bettina Torres’ testimony is a little puzzling. When initially questioned by the detective she didn't mention that she had gone outside. There is no doubt that she did go outside because she was seen there by Wilma Elliott and others assisting Sam Billy. Still, Henderson found her testimony generally credible.

Lianna Vasquez, Isaiah’s mother, and Ricky Parrish, went outside at the sound of screaming and saw Sam Billy on the ground being assisted by Bettina Torres, Wilma Elliott, Derek Billy, and someone she didn’t recognize, most likely David Primeaux. On the stand she blurted out that she had heard Derek Billy state that Sam Billy had accused Coke Elliott of stabbing him. Henderson did not find this to be credible as it is unlikely that she would merely have “forgot” to mention such an obviously critical statement, which is what she claimed. She had also offered testimony on other topics that was at substantial variance with what other witnesses had said.

Patrick Zaste was another witness whose credibility was problematical. He said that around 5am Coke Elliott and his girlfriend Priscilla Knight had arrived his house where Elliott went into Zaste’s bathroom and changed into some of Zaste’s dirty clothes, leaving his own behind along with a small knife. Patrick Zaste turned these items over to the police only after they, the police, contacted him, many weeks later. It was never said how the police found out about the clothes or the knife.

Mr. Zaste testified in a halting, confusing manner. He sometimes did not appear to understand the simple, straightforward questions he was being asked. However, the judge found the “gravamen” of his testimony to be generally credible, citing the prosecution’s comment that his story was too weird to be made up: “The court doubts that he would be capable of fabricating such an incident and of remaining consistent in his recitals.”

Judge Henderson concludes: “While the remaining evidence presented at trial raises some questions, it neither contradicts or weakens the substantive evidence of defendant Elliott’s responsibility for the stabbing. The testimony from various witnesses regarding events that occurred during the hours preceding the stabbing was somewhat confusing and contradictory. That is not unreasonable, given the fact that the testifying witnesses observed events from different perspectives and distances with people, both familiar and unfamiliar, constantly milling around. The absence of confirming or eliminating forensic evidence remains puzzling. However, that seems more due to failure of the Department of Justice to analyze a sufficient number of samples and evidence collected by investigating deputies. The forensic evidence from the autopsy on whether the knife left in Zaste’s house could have inflicted the wound is inconclusive.”

The knife was two inches long, handle included; the wound more than six inches deep. Henderson notes the prosecution’s expert said the knife could have made the wound while ignoring the defense’s expert who said it could not possibly have done so.

Priscilla Knight, Elliott’s girlfriend, was prepared to testify that they never went to Zaste’s house. But she was never called. Public Defender Linda Thompson said her failure to call Ms. Knight was a “tactical decision.” Ms. Knight’s denial of her and Coke Elliot's presence at the Zaste house leaves many questions unanswered, Henderson admits, but he refuses to believe Zaste fabricated the incident.

In the end, after many pages of explanation for his reasoning, Henderson predictably denied the motion for a new trial and set the matter for Judgment and Sentencing last Friday, July 15th.

The courtroom was standing room only, all Native Americans except for the white justice apparatus and me. The entire session was taken up with statements from relatives of the victim who wished to address the court, beginning with Sam Billy’s fiancée and ending with his mother. It was the fiancee’s mother who made the comment about sending a message that a Native American’s life being worth just as much as any other American’s.

All the statements were moving, but without a recording device — not allowed in a courtroom — or a copy of the transcript, which won’t be available for months, all I can tell you is that some of the statements were among the most dramatic you will hear in a courtroom, such as the brother telling the court that the family was wounded and the wound is still bleeding; the fury of the sister who had to be told by the judge to address him and not the defendant when she turned to Elliott and said if he ever got out of prison he’d have to watch out for her. Most of the statements called for the judge to put Elliott away for life — in this they were unanimous. They were trusting the justice system, hoping “for justice, not revenge,” as one family member stated.

But it was the victim’s mother who made the strongest, most eloquent remarks. Somehow standing above her grief, she calmly put the whole miserable tragedy into the perspective of her people, her tribe, and the entire Native American dilemma.

She said to Elliott, “You talk bout IP, Indian Power [a prison gang], but you don’t know about real Indian power. My husband, he talked to presidents, to President Kennedy,” she began. I couldn’t get it down well enough to do the speech justice, but some of my notes may give the reader some idea of the beauty and power of this woman’s remarks:

“You think silly trivial things like playing with knives is power? If you want to have some power put some of your money at the college for the young people…”

She talked of her children, the work it had taken to put them through school, their accomplishments in the real world beyond the fantasies of the gang life, how the honest young people she knew had brought honor to the tribe. She said Sam Billy was her youngest son, and that the family and tribe had great expectations for him. Indeed, most of the entire session had been taken up with this young man’s promise, his gift for leadership.

She said, “Our ancestors have tried to get us to a better place, and we try real hard to teach that — you’re Native, you should know our history…”

And then in the midst of the misery of the entire situation, she did something even more remarkable. She delivered a brief anecdote of Sam Billy’s mentorship and protection of his little sister that brought him briefly back to life, and soon the whole room was laughing.

“I’ve taken enough of your time,” she said. “Thank you.”

To think that this woman’s son, a son she'd hoped would carry on the best part of the tribe's future, to think that this man was killed in such a senseless way was just too much.

At this point, it was defense’s turn to speak.

But they weren't ready.

Which was probably a good thing. The feeling in the room was unlikely to countenance any talk about leniency for Coke Elliott.

Judge Henderson continued the sentencing hearing until this Friday, July 29th.

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