Court Papers Tell Of Bothell Cross-Burning

They had been drinking beer and suddenly they were making racial jokes, Brian Cole recalled.

"We were all trying to figure out something to do," Cole said in statements presented to King County Superior Court Judge Steven Scott this week. "Then the idea of burning a cross in the Elions' yard came up. We were all psyched up about that."

That was the genesis of a cross-burning April 16, when African-Americans Leonard and Jean Elion and their family became terrified in the neighborhood they once trusted.

That also is among the reasons Cole, 18, a recent graduate of Bothell High School, came to be charged with malicious harassment. He is one of four adults and two juveniles accused of building an 8-foot cross and setting fire to it.

Judge Scott has approved Cole's admission of the facts in the incident but is reserving a formal finding of guilt pending a ruling on the constitutionality of the state's malicious-harassment law passed in the early 1980s.

Cole contends the law against cross-burning is vague and violates free-speech rights. That challenge is to be heard within three weeks in Superior Court. If found to be legal, the law is expected to be appealed to the state's higher courts.

In an unrelated case, David Talley of Maple Valley also is challenging the law. He is accused of burning a cross to discourage a black family from moving in next door.

Deputy Prosecutor Michael Hogan said the state's stance is

that cross-burning is violent conduct and not protected speech.

The court papers allege what happened in the Bothell incident, in which Cole is described as the leader of a group of restless high-schoolers during spring break: One youth went to his garage and grabbed a hammer, while Cole and a colleague "grabbed some landscape timber." The two pounded the stake in, and a third person finished it, Cole recounted. Another youth got lighter fluid, and the cross was placed in the back of a truck.

At the Elion house, Cole said, he and others tried to stand the cross up, "but it wouldn't light." (The charges state that the base of the cross and shrubbery did ignite.)

"We all ran back to the car and went back to the Canyon Park Plaza," Cole recalled.

Later they set out to burn another cross, wrapping a second cross with gauze at one home. Several girls drove up and "were carrying on how mean this was," Cole said. That cross was left behind, hidden in a bus.

Later, one youth was making prank phone calls when another said, "Let's call the Elions."

"So I said, `What's their phone number?' " Cole said.

When he was given the number, he laughed, Cole said. But when urged by one youth to "say something," Cole called the family's number.

"How did you like the cross . . . ?" he queried, using a racial epithet.

Cole concluded his statement to the judge matter-of-factly: "After that, . . . I went home."

Prosecutor Hogan will recommend that Cole serve nine months in jail, the top of the standard punishment range for the crime if it is upheld.

The five others accused in the cross-burning are either awaiting trial or the setting of a trial date.