Dear Bruce,

In last week's AVA, a transcript was printed of rabid remarks made by the logger who dropped a tree on David Chain, killing him. According to the AVA's version of the transcript, while this man was showering the activists with a barrage of suave expressions like "motherfuckers" and "cocksuckers," he told them, "Get outta there! Otherwise I'll make fuckin'. . . I'll make sure I got a tree comin' this way!" A short time later, he cut down the tree that fell toward Chain and "Farmer," killing Chain. This memo assumes the AVA's account of the videotape is accurate. If not, then obviously what I say here does not apply.

Earth First! apparently is characterizing the killing as a "manslaughter." Wrong-o. Under California law, if a person commits an act that creates a substantial danger to human life, and he/she recognizes the danger and acts with a conscious disregard for it, then any resulting fatality constitutes second-degree murder under the doctrine of "implied malice aforethought." This is true regardless of whether the killer intended to kill anyone, and regardless of whether he/she knew the victim.

Thus, if I drive by an elementary school at 2:45 pm on a school day, and I travel at a speed of 100 mph with full knowledge of what time it is and where I am, then I am guilty of second-degree murder if I kill some school kid, regardless of whether I intended to hurt anyone. In essence, if I knew of the danger to human life -- and, unless I was drunk or otherwise loaded out of my head, it's inescapably inferable that I did -- then I'm liable for murder two.

Any logger knows dropping large trees in people's direction is dangerous to human life. Moreover, this man's alleged remark -- "Get outta here! Otherwise I'll fuckin' . . . I'll make sure I got a tree comin' this way" -- can only be construed as a threat. At a minimum, he was trying to intimidate these people in a very risky way, with an obvious disregard for the danger to their lives. Therefore, regardless of whether he intended to kill anyone, he is guilty of second-degree murder.

The potential criminal liability does not end there. If the man's employers, supervisors or fellow workers suggested he intimidate the activists by making trees fall their way, then they aided and abetted his felonious assault and are liable for its natural and probable consequences. In other words, they, too, are guilty of second degree murder.

This implied-malice murder business is not an esoteric rule of law. Many published decisions have been written on the subject in recent years, and I personally have handled the appeals of several people who were convicted of second-degree murder under theories of implied malice. If the activists had dropped trees in the direction of the loggers, and this foul-mouthed cretin had wound up being the corpse, you could bet the ranch -- er, the fort -- the authorities would have charged any activist who was involved with murder. And rightly so.

I encourage all AVA readers who care about this tragedy to contact the Humboldt District Attorney and the US Attorney General, demanding a very thorough investigation be undertaken. If it turns out that the events occurred as the AVA reported them, then readers should demand that the perpetrators be charged with murder. Anything less would be indefensible, even by the notoriously dissolute standards of The North Coast's "law enforcement" community.

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