FAIRBANKS - A federal judge made a key error when he chose not to give a jury a self-defense instruction in Schaeffer Cox’s murder conspiracy trial, argued the attorney for the former Fairbanks militia leader in her opening appeal filling last week.
After several delays in the appeal, Los Angeles-based public defender Myra Sun began her effort to reverse Cox’s conviction with a 59-page brief filed June 15. Among her arguments, she picked several issues with jury instructions, arguing the lack of specific instructions about self defense or entrapment undermines Cox’s murder conspiracy conviction.
Her opening argument was considered an “oversized” brief, which required a special motion to file. Her effort is in addition to a brief Cox filed on his on behalf last month. Her opening appeal brief comes more than two years after Cox’s conviction because Cox disagreed with the approach taken by Suzanne Elliott, his first court-appointed attorney.
Cox, a former Alaska legislative candidate and a firearms advocate who held meetings that attracted large crowds five years ago, was sentenced in January 2013 to almost 26 years in federal prison for one count of conspiracy to commit the murder of federal employees and eight felony weapons charges. As someone with “sovereign citizen” ideology, whose adherents reject the authority of the United States government, Cox planned to kill law enforcement agents who tried to make him follow laws, prosecutors argued at trial. During a year-long investigation, two government informants recorded more than 100 hours of conversation between Cox and his followers.
Sun’s brief echoes defenses Cox made at trail. Rather than a plan to murder people without provocation, conversations recorded by the informants show a self-
defense plan against federal agents who Cox believed were going to assassinate him, she said.
“Certainly, if Cox agreed with others to defend himself from attempts to kill him, he did not conspire to murder anyone,” she said. “Here there was more than enough evidence to warrant the instruction Cox sought,” Sun said.
A self-defense instruction, which Cox’s trial attorney, Nelson Traverso, asked the trial judge for but did not receive, would have instructed the jury that prosecutors needed to prove “beyond a reasonable doubt” that Cox didn’t make a perfectly legal plan to defend himself.
A defendant doesn’t need to present much evidence of self defense for a judge to give the jury the self-defense instruction, she said.
“A defendant is entitled to a self-defense theory instruction as long as there is any foundation in the evidence, whether weak, insufficient, inconsistent, or of doubtful credibility,” Sun said.
In a different part of the brief, Sun made a similar argument about an entrapment jury instruction. Cox’s jury should have been instructed that prosecutors had to prove beyond a reasonable doubt that Cox wasn’t entrapped, Sun said. Despite arguing at trial that the government informants instigated talk of killing federal employees, Traverso didn’t even ask trial judge Robert Bryan for an entrapment instruction. Traverso’s failure to ask for an entrapment instruction “fell below prevailing professional standards,” Sun said.
Four associates of Cox were initially arrested on the same day as Cox in a multi-agency raid in the Fairbanks area in March, 2011. One of them, Michael O. Anderson, was freed after an Alaska state judge threw out state charges over evidentiary issues. The other three, Coleman Barney, of North Pole, and Salcha couple Lonnie and Karen Vernon remain in federal custody.
Barney, who was convicted on weapons charges but not the murder conspiracy charge, received a six-year sentence and is scheduled to be released July 17. Lonnie Vernon is serving the same sentence as Cox. Karen Vernon received a 12-year sentence.
Contact outdoors editor Sam Friedman at 459-7545. Follow him on Twitter, @FDNMoutdoors.