Defense Calls Metzger Case Persecution : Trial: Ex-Klan leader and three others broke no laws in burning crosses, his lawyer says.

As “despicable and morally offensive” as their views may be, four white supremacists broke no laws when they burned crosses in Kagel Canyon eight years ago, a defense attorney told a Los Angeles Superior Court jury Wednesday.

Opening the defense phase of the conspiracy trial of former Ku Klux Klan leader Tom Metzger and three others, attorneys Kevin S. Avery and Darold Shirwo argued that the men were being persecuted for their beliefs.

“What is important here is what they did,” Avery said. “What is not important here is who they are, how they feel, what they think, why they gathered and for what purpose.”

Because the group of white racists that met on the night of Dec. 3, 1983, had obtained fire permits, they did nothing illegal when they set three 15-foot crosses ablaze on private property, the defense attorneys argued.

The prosecution maintains that the permits did not extend to cross-burning and alleges that the ceremony in a canyon above the San Fernando Valley was staged to incite violence in the racially mixed neighborhood.

The four defendants are charged with felony conspiracy to violate the municipal fire code and misdemeanor counts of unlawful burning and unlawful assembly. If found guilty, they face a maximum penalty of 3 1/2 years in jail.

Avery, who represents defendant Brad Kelly, and Shirwo, who is Metzger’s lawyer, said they will prove the four men on trial did not help to plan the cross-burning but were participating in a constitutionally protected exercise of free speech.

“The evidence will show this is nothing more than the political persecution of Mr. Metzger,” Shirwo told the jury.

Outside the courtroom, Avery put it more bluntly, calling the trial “political. . . . They want to bring Metzger down.”

As the defense began Wednesday, authorities in San Diego County placed Metzger’s Fallbrook home on the auction block to help pay off a $12.5-million judgment awarded in an unrelated case to the family of an Ethiopian immigrant beaten to death by skinheads in Oregon.

In a civil trial last year, a jury held Metzger, his son John, and his White Aryan Resistance organization responsible for inspiring the skinheads who killed Mulugeta Seraw. The courts ordered Metzger’s assets seized and his home sold to begin satisfying the debt.

The only bidder Wednesday was the attorney representing Seraw’s estate, who purchased the home for the minimum bid of $121,500. Metzger, in Los Angeles, said the three-bedroom home was not worth more than $90,000. He labelled the attorneys for Seraw’s estate as “a bunch of thieves” who won the case fraudulently by bribing witnesses.

In the Superior Court trial, Avery said two convicted felons will be brought from federal prisons in Atlanta and Marion, Ill., to testify that they--and not the defendants--planned the cross-burning ceremony.

The two, Randy Evans and Frank Silva, are each serving consecutive 40-year sentences for their involvement in a white racist crime rampage.

The first witness to testify for the defense was John Metzger, who attended the cross-burning ritual as a 15-year-old. He said his father was scheduled to speak at the event and had been assured that the organizers had a fire permit because “my father was concerned it was done the legal way.”

In other proceedings, Judge J.D. Smith denied a motion by three of the defendants--Metzger, Kelly and Erich Schmidt--who were seeking a mistrial on the grounds that the judge was biased. The fourth defendant, neo-Nazi sympathizer Stanley Witek, separately moved that the case against him be dismissed for insufficient evidence. The motion was denied.