Late Tuesday morning, with a 12-member jury selected and impaneled, attorney Dennis Cunningham, lead counsel for Darryl Cherney and the estate of Judi Bari, delivered his opening statement in their civil rights lawsuit against six FBI agents and three Oakland police officers.
“This was a frame-up aimed at neutralizing [Bari and Cherney] politically,” Cunningham said of the arrest of the two activists shortly after a bomb blew up their car in front of Oakland High School on May 24, 1990, right before the three-month series of timber protests called Redwood Summer was to begin. “The mechanism by which this frame-up was accomplished amounted to a conspiracy amongst these agents and officers. A conspiracy is legally defined as a ‘meeting of the minds,’ and [the defendants] continued to meet to keep this smear going.”
Cunningham’s address capped the trial’s hectic first two days. When the suit, 12 years in the making, finally got underway on Monday, it did so with a bang. One of Bari and Cherney’s attorneys found himself suffering from chest pains on the eve of the trial. He was hospitalized — probably temporarily — as the trial began. Rumors swirled around the courtroom that the plaintiffs’ legal team was prepared to walk down the hall and file an immediate appeal if Judge Claudia Wilken proved inflexible on a particular pre-trial motion. Busloads of North Coast activists began to fill the plaza outside the courthouse in preparation for a kickoff rally.
Perhaps the more dramatic than any of these, though, was the appearance of attorney J. Tony Serra for the plaintiffs. Serra, whose reputation as a latter-day Clarence Darrow has only increased since his successful 1997 defense of murder suspect Bear Lincoln in the Mendocino County Superior Court, has long been listed as one of Bari and Cherney’s attorneys, but there was always some question about whether his crammed schedule would allow him to make it to court. He now promises to be at the plaintiff’s table throughout the six-week trial, probably to handle the cross-examination of witnesses — one of his particular specialties — and perhaps to deliver closing arguments.
Legal maneuvering, in which the two sides have been engaged with varying degrees of intensity over the years, continued Monday morning, when Wilken was set to rule on whether the plaintiffs would be allowed to ask about prospective jurors’ feelings about abortion. The plaintiffs had thought if any strongly anti-abortion jurors were allowed into the box, introduction of the Lord’s Avenger letter might arouse prejudice against Bari and Cherney. The letter, written in the voice of a fundamentalist Christian zealot, describes the two’s attendance at a pro-choice rally.
Judge Wilken had previously ruled that there would be no mention of the abortion issue during voir dire, the stage of the trial during which jurors are screened. “If Plaintiffs wish to minimize any prejudice that may result from raising the issue of abortion, they may do so in other ways, for example by redacting the references to abortion from the Lord’s Avenger letter,” she wrote. The attorneys for the plaintiffs were said to be unhappy with the formula, and came to the court Monday preparing to challenge it, perhaps to a higher court.
But when Wilken emerged from her chambers into the courtroom an hour late, it became apparent that she had spent the time drafting a more acceptable compromise. Potential jurors would be asked the following en masse: “Views on abortion can be very emotional. You will not be excluded from the jury because of your views [on this issue]… If you are opposed to abortion, would that affect your ability to be fair and impartial to someone who has taken part in a pro-abortion rally?” Any member of the jury pool that raised their hand to the question would be further questioned or excluded entirely. The plaintiffs accepted Wilken’s language.
After this was settled, the 67 members of the jury pool were called in. Though they were called in from all over Northern California — one woman came down from Santa Rosa — they looked as if they might have been pulled off the corner of 14th and Broadway that morning. There were plenty of white, Asian, and Latino faces (though very few black, for some reason). Dress ranged from high-powered suits to jeans and sneakers.
The clerk of the court swore the jurors in, and informed them that they would be testifying under penalty of perjury. She then gave the jurors a summary of the facts of the case, and outlined the plaintiffs’ four claims and the defendants’ arguments against them.
They charge that the defendants violated their rights to be free of illegal search and seizure, guaranteed by the Fourth Amendment of the constitution. Their Fourth Amendment rights, they say, were violated by the defendants when they were placed under arrest, and when search warrants — which they claim were based on false information — were conducted at their homes. They charge that the defendants violated their First Amendment rights to freedom of speech by conducting a “smear campaign” against them, as Cunningham was later to say in his opening argument. They charge the defendants with conspiracy to deprive them of these rights and, finally, they charge the Oakland police officers and the city of Oakland with false arrest.
The defendants respond that they were acting in good faith as law enforcement officials, and that there was no malicious intent in their investigation. They say that they had received information from other law enforcement agencies, and from other branches of the FBI, that Earth First was a organization known for violence against property and illegal tactics. They say that there was no “conspiracy” against the plaintiffs — that the two law enforcement agencies were simply cooperating in an investigation.
Wilken began by asking the jurors the abortion question, along with three others that were meant to identify anyone who admitted to prejudice in favor of law enforcement. She asked if anyone had heard about the defendants, the attorneys, or any witnesses that would appear during the trial. Several raised their hands in response to the latter questions; when the abortion issue was brought up, none responded.
The judge then began asking questions of each juror individually based on their responses to a questionnaire. Wilken was able to question about 20 members of the jury pool before court was adjourned at 1:30 p.m. Several of the members said that they had personal connections of one sort or another to law enforcement; one woman said that her husband owned a company that sold guns and uniforms to the FBI and other law enforcement agencies. Still, Wilken dismissed no one immediately. Her overriding concern, and one that obviously weighed heavily on both the plaintiffs and the defendants, was to keep as many potential jurors around as possible. All 67 were ordered to return on Tuesday.
Meanwhile, around 250 people had gathered outside, in the plaza of the Ronald V. Dellums Federal Building, for a heavily advertised rally in support of the plaintiffs. The Giant Puppet People had brought a shaggy-headed Bari with fiddle, and a smaller one of Richard Held, Jr., the reviled former FBI bureau chief and COINTELPRO figure. Held figure wore prison stripes .At noon, emcee Tanya Brannan stepped to the mic and became the first in a series of speakers to invoke forces from beyond the pale.
“Let’s start this rally with a howl — to call in the spirit of the Earth, to call in the spirit of Earth First!, to call in the spirit of Judi Bari!” Brannan shouted. The plaza erupted in a mass wolf-call. The crowd seemed to be about half Bay Area/half North Coast, with a number of Mendocino-Humboldt luminaries — Beth Bosk, Tracy Katelman, Naomi Wagner — in attendance.
Many speakers and musicians were brought on to rally the crowd. Perhaps the most significant of these was Greg King, who, along with Bari and Cherney, was one of the principal organizer of Redwood Summer. King withdrew from high-profile activism shortly after 1990, and his appearance at the rally was perhaps the first time in years that he has spoken publicly about the lawsuit. He began by praising Cherney — “one of the most courageous individuals I know” — and by linking the trial to current affairs.
“This trial is such an important part of what’s happening in our nation today,” King said. He mentioned the USA-PATRIOT act, the recent anti-terrorist legislation: “We have the worst government in the history of our country. So, to take on the federal government’s law enforcement arm at this time is incredibly important.”
Others spoke for Mumia Abu-Jamal or Leonard Peltier. A series of folk musicians sang songs they said were written on the day of the bombing. The rally stretched on as the crowd waited for word from inside the courtroom. Several of the musicians were invited back to the stage.
At around 2 p.m., the courtroom began to empty into the street. Cherney took the stage to cheers, and proceeded to give a brief update on the situation inside the court. He spoke of his love for the city of Oakland, and said that he was sorry that he had to sue it.
“It’s such a disgrace for this city,” he said. “It’s time for Oakland to right this wrong.” Cherney said that he has recently written a letter to Mayor Jerry Brown, asking him to reopen the bombing investigation. At the mention of the mayor’s name, several hissed.
“It is ironic that we have to battle a city that has as its mayor Jerry Brown — a man who devoted a chapter in his last book to Judi Bari,” Cherney said.
When court re-opened on Tuesday morning, the Cunningham and Serra informed the court that their colleague Bob Bloom — the attorney who had been hospitalized for a heart ailment right before the trial began, would undergo an angioplasty on Thursday. They asked Wilken if the trial — which is scheduled to run Mondays through Thursdays for the next six weeks — might skip this Thursday. They said that if their request were granted, Bloom would not have so much material to catch up with. The trial’s schedule, though, appears to be one of Wilken’s top priorities. She denied the request, noting that the plaintiffs appeared to have plenty of talented lawyers at their table.
Then the prospective jurors were brought back in, and Wilken continued to question them individually. Most of her questions had to do with the jurors’ work, or the work of their family members. She paid particular attention if any juror had a relative with a background in law or law enforcement. Several prospective jurors said that they had heard of the case or Tony Serra, who had been in the news lately in connection with the San Francisco dog-mauling trial. Several others pleaded with the judge, claiming that their work or their family obligations would not allow them to serve the length of the trial
By 11 a.m., Wilken had come up with a list of 24 jurors that she had deemed both acceptable and able to serve. Each side was then allowed to strike six candidates off the list. In the end, 12 jurors — under federal rules, a relatively arbitrary number — were seated in the box. Wilken had chosen the number 12 with hopes that six would still be there by the time the trial ended. The defense had said that it would not accept a verdict with fewer than six jurors. Apparently, jurors in long federal trials have a habit of disappearing over time, and the court appears to have little power to keep them at their posts.
Three of the jurors are male, nine female. Three are black, one Asian, and eight white. Overall the jury skews a bit older — eight of the jurors appear to be over forty.
By the time the jury was seated, there were between two and two and a half hours left in the courtroom schedule. Cunningham requested two hours to make his opening remarks. R. Joseph Sher, a U.S. Attorney representing the FBI defendants, said he would take 45 minutes. Maria Bee, and Oakland city attorney representing the Oakland police officers, said she needed 30 minutes.
A bit of trouble broke out when Wilken said she was disposed to allow Cunningham’s opening arguments to proceed on that day, saving the defense for Wednesday morning. Sher jumped to his feet, saying that it was “fundamentally unfair” for the defense’s case to wait for another day. He asked that the court to recess and hear all arguments on Wednesday.”
Serra got up to respond, saying, nonsensically, “This is beyond the artifice of subjectivity, here.” Sher’s eyes gleamed in anger for a moment. In this, and a few other minor skirmishes that took place around the margins of courtroom argument, Sher seemed to betray apprehension at the presence of the legendary Serra. Previously, in various pre-trial hearings, Sher had seemed full of good grace and confidence. Lately, with Serra as an opponent instead of (or in addition to) Cunningham, he appears to be far less sure of his case.
Wilken, with her iron dedication to the court calendar, said that opening statements would go on, but that she would caution the jury not to draw any inferences from the fact that arguments would be heard on different days.
With that, Cunningham got up to the podium. “This is a case in which we claim that the defendant police officers and FBI agents violated the rights of Judi and Darryl after the bomb went off in their car,” he said. “The FBI agents who arrived on the scene [of the bombing] told the Oakland Police Department officers that the FBI was familiar with the suspects as ‘the kind of people who might be carrying a bomb. That set the tone for the entire investigation.”
Cunningham painted a picture of the responding FBI officers as ideologues who were out to bury Earth First! on the eve of Redwood Summer. They first stage of their plot, Cunningham said, was to falsify the location of the bomb in Bari’s automobile. Given all the available evidence, the agents, all from “Squad 13,” the FBI’s San Francisco-based counterterrorism unit, must have known that the bomb was located under Bari’s seat, Cunningham said. Instead, they reported that it was located in the back seat, where, they said, it would have been visible.
“They desired to tell the public that they were bombers, they were dangerous people,” Cunningham said. “Particulars of the frame-up were generated by the FBI agents, but the Oakland Police Department officers thought it was all a fine idea.”
Cunningham did not identify why, specifically, the officers and agents would have borne such a grudge against the activists, but he insinuated that they wanted to prevent Redwood Summer from being a success. The organizing of the campaign had been proceeding, Cunningham said. Later, when rallies were held in Samoa and Fort Bragg, the movement had begun to grow. Cunningham said that the investigation of Bari and Cherney as suspects in the bombing dragged on for months, for that reason.
“This campaign was starting to have an effect — that’s why Earth First! was targeted,” Cunningham said. “This was an attempt to neutralize what they were doing. There’s no question that these charges had an effect on [Bari and Cherney’s] reputation and the work that they were trying to do.”
“[Bari] was the one they targeted, because she had a big mouth and she was effective. That’s why they struck at her. That’s why the bomber struck at her and that’s why law enforcement struck at her. But the way they stirred up public opinion against her in this case, that’s not permitted by our Constitution.
“We don’t let them do that here. We can’t allow the police to respond that way. The ideas of change [Bari and Cherney] were trying to bring about were good ones. They were fighting for them… As you’ll see, these are good people. I believe you’ll see the facts quite clearly during this trial, and I believe that when you sit down in the jury room, you’ll enter a judgment for the plaintiffs.”
Sher and Bee will give their opening arguments this morning. Afterward, the plaintiffs will begin to call their witnesses.