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Deliberations (May 29, 2002)

The jury deliberating Judi Bari’s and Darryl Cherney’s civil rights lawsuit against the seven FBI agents and Oakland police officers involved in their arrest appeared close to reaching a verdict Tuesday, but Judge Claudia Wilken let it be known that charges of impropriety and jury tampering that were brought against the plaintiffs late last week may result in a mistrial. 

The jury sent out a note Tuesday afternoon saying that they had reached accord on several of the claims against the law enforcement officials, but they found themselves deadlocked on “one or more” of the others. Wilken told the jurors that they would have to slug it out a while longer in the hope of reaching a complete verdict. If they could not agree on the remaining charges, she said, she would eventually declare them hung, and there would have to be another trial as to the undecided charges. 

Courtroom watchers expect at least a partial verdict to be delivered today or sometime later this week. In a hearing earlier in the day, though, Wilken let it be known that she would consider the defense’s argument that attorneys for the plaintiffs may have tainted the jury when speaking at a pro-Bari rally last Friday, May 24 — the 12th anniversary of the bombing — near the courthouse steps. 

The defense charges that the attorneys took to the rally stage five minutes before the jurors were due to exit the building Friday afternoon, and that some of the jurors paused to listen to attorney Tony Serra as they exited the building. 

“There was no intentionality at all involved,” Serra told the judge Tuesday morning. “I knew the jury was going to get out at 1:30, but I had no idea at all what time it was.” In any case, he argued, “The spirit of what I said was in no way inflammatory.” He simply prayed that the jury would be objective and he hoped that justice would be done — there was no attempt to characterize the evidence presented in the case. 

But Wilken learned that a recording had been made of the speech, and it became apparent that she was going to want to hear it. A member of the audience provided Serra with a transcript of his speech, which had been recorded by the Indymedia web site. Serra read it for the judge, and as he did his earlier characterization crumbled: 

“[We] say to those who have had eyes to see and ears to hear that we have proved that the FBI, with the willing assistance of the Oakland Police Department, falsely arrested and created false affidavits and therefore illegally searched both Judi and Darryl. And history will record that we dominated in that evidence. We immensely respect the jury system. We send our gravest thoughts, respect, prayers to the jury that they will be objective, and they will render us the justice that this case deserves.” 

“On a scale of one to 10, that’s a one,” Serra asserted. 

Wilken didn’t seem to think so. “This is very unfortunate,” she said. She added that she would not declare a mistrial — at least, she wouldn’t do it before the jury returned a verdict. She told the defense that they might as well wait; sometimes a jury’s decision will obviate the need to declare a mistrial. But Wilken was clearly keeping her options open. 

At this point, the valiant Bob Bloom stepped in to offer a defense of his side. “So you plan to tell the jury that this was improper?” he asked the judge. “Absolutely,” Wilken responded. Bloom then instructed the judge that there were “one or two things” she should know before she did. The plaintiffs’ attorneys had merely been exercising their freedom of speech, he said. 

Wilken had become angered at the plaintiffs — particularly Bloom — during the trial, but her wrath on this occasion was several orders of magnitude greater that anything seen heretofore. “Where do we have trials, Mr. Bloom?” she raged. “In the courtroom or in the courtyard? Where do we speak with the jurors?” 

Bloom conceded the point, but pressed ahead nevertheless. He laid blame for the incident on the defendants, who he said could have “headed it off” if they had wished to. “There’s this thing called the First Amendment,” he said. “It has some importance in this country. To describe this as misconduct is highly prejudicial and in fact incorrect.” 

Wilken simply tuned Bloom out after this. She called the jury in and instructed them that the plaintiffs’ conduct was improper and that they should not let it influence their deliberations. The jurors left, then she told the plaintiffs that Cherney, the plaintiffs’ attorneys, and anyone who sat with them during the trial would not be allowed in the courtyard, nor across the street, nor in any of the restaurants the jurors were known to frequent before or after their deliberations or during their lunch break. 

Bloom asked for the judge’s attention again before she was able to retire to her chambers. He wanted to know if the restraining order just placed on plaintiffs’ attorneys would apply to the defense as well. No, Wilken told him, it would not. “I have not been informed of them speaking into any microphones,” she said. “I have not either,” Bloom said. “Well, let me know if they do,” the judge retorted before leaving the room. 

In addition to declaring a mistrial, Wilken has the power to reduce the amount of damages that may be awarded to the plaintiffs and to reverse the jury’s decision as to certain defendants. At the end of the trial, she excused the charges against FBI agents Walt Hemje and John Conway because, she ruled, the plaintiffs had been unable to demonstrate that they held any animus against Bari and Cherney. Wilken has previously signaled that she may further drop the claims against FBI agent Stockton Buck. 

Mea culpa: Writing about Judi Bari’s videotaped deposition, which was played in court a few weeks ago, this reporter described Bari’s and Cherney’s Uzi photo session in a way that may or may not have comported with Bari’s testimony in one particular. I described Irv Sutley “snapping the photos”; it has since come to my attention that Pam Davis, not Sutley handled the camera that day. Since some have seized upon that statement as evidence that Bari perjured herself in her sworn deposition, I fell obliged to note that the line arose from my own flawed understanding of the events that day and not from Bari’s testimony.

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