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Cops Finger Each Other (April 24, 2002)

Last week, attorneys for Darryl Cherney and the estate of Judi Bari made great progress in their lawsuit against six FBI agents and three OPD officers who were involved in their arrest. Dennis Cunningham, Tony Serra, and Robert Bloom questioned three defendants — Sgts. Sitterud and Chenault of the Oakland Police Department and Special Agent Frank Doyle of the FBI — and were able to draw out serious inconsistencies in their various versions of events between the explosion of a pipe bomb in Bari’s Subaru and the arrest of Bari and Cherney later that day or early the next morning. 

At the same time, though, the plaintiffs’ legal team drew numerous stinging reprimands from Judge Claudia Wilken, often delivered in front of the jury, for wasting the court’s time, arguing with witnesses, and continuously bringing up matters that the court had excluded from the case — namely, COINTELPRO and other dirty episodes in the FBI’s history. 

Testimony throughout the week centered on the key issues surrounding Bari’s and Cherney’s arrest. Where in Judi Bari’s Subaru was the bomb sitting when it exploded? On the night of May 24, 1990, just a few hours after the bomb went off, the Oakland police department wrote a sworn affidavit testifying that it was behind the driver’s seat on the rear floorboard, where it should have been visible when Bari and Cherney loaded the car that morning. How did they come to that conclusion, and why were they later forced to recant? 

The OPD also testified that nails that were strapped to the bomb were “identical” to ones found in bags in the Subaru’s hatchback. Where did that come from, considering that it turned out to be patently false? And later, after that had proven to be false, who matched nails found in a search of Bari’s Redwood Valley home to the bomb’s nails “within a batch of 200-1000?” 

In many of these matters, the Oakland defendants (Sitterud and Chenault) disagreed sharply with Special Agent Frank Doyle, who at the time was the FBI’s top bomb man in San Francisco. And, to complicate things further, the OPD and Doyle were often at odds with a key witness in the case: Special Agent David Williams, at the time a laboratory analyst in the FBI’s Explosives Unit in Washington DC. 

Bloom, who was incapacitated during the first week of the trial due to heart problems, took a lead role in examining witnesses and laying out the plaintiffs’ case during the second week. Before the case began, Wilken ruled that only one attorney for each of the three parties (the plaintiffs and the Oakland and federal defendants) could question each witness, and Bloom handled both Chenault and Doyle.

Bloom’s courtroom style is heavily dependent on the fatuous question and the low blow. He asks questions he knows will be stricken from the record — mainly those dealing with COINTELPRO and other vast FBI conspiracies — presumably to insert his own testimony and to impress the jury with his bravery. 

When Chenault, who is black, took the stand, Bloom quickly put him in his place. Bloom asked Chenault what he knew about Redwood Summer — didn’t he ever learn that it was going to be like Mississippi Summer in the 1960’s, when all those wide-eyed college kids went South to help poor African-Americans get the right to vote? Chenault, with perfect cop stoicism, sucked it up and said yes, that was how it was described to him. 

Most of the week’s testimony concerned the above-mentioned affidavit, which was in Chenault’s name. The affidavit, which was to be presented to a judge in order to obtain a search warrant on Bari’s and Cherney’s homes, was written immediately after a briefing between FBI agents and OPD officers on the evening of the bombing. 

The affidavit is one of the key documents pertaining to the plaintiffs’ claims that their Constitutional rights to freedom of speech and freedom from illegal search and seizure were violated. In it, Chenault swears under oath to a “fact” — that nails strapped to the bomb were “identical” to those found in a bag in Bari’s car — that was patently false, and should have been known to be false at the time. He also swears to several other dubious “facts” — that the bomb blew a hole in Bari’s “rear seat floorboard” and that Bari and Cherney were probably “members of a violent terrorist group involved in the manufacture and placing of explosive devices.” 

It is Bloom’s belief, or it is the belief he wishes to press on the jury, that FBI Agent Frank Doyle “dictated” the affidavit to Chenault, and Doyle included in it material that he knew to be false. Then, having played the OPD for patsies, all the FBI agents huddled in the hallway and left, leaving the duped police department to carry out their dirty work. 

First Chenault and then Doyle knocked down this version of events. Doyle did help with the affidavit, both said, but his involvement was limited to sitting at a desk in police headquarters and writing out what he believed about the bomb. This written statement was handed to Chenault, who was drafting the affidavit with the assistance of two members of the Alameda County District Attorney’s office. This shouldn’t have been too surprising to the plaintiffs, because they had acquired a copy of Doyle’s memo through the discovery process. 

There were significant differences between Doyle’s memo and what Chenualt attributed to Doyle in the affidavit, though. Chenault had written that Doyle told him that the nails on the bomb and the nails found in Bari’s car were “identical”; in his memo, Doyle mentioned the nails but did not call them “identical.” This discrepancy became the basis for what was probably the plaintiffs’ strongest attack on the defendants last week.

Chenault would testify that he got that information from Doyle at the bombing scene. “Doyle told you that a separate bag of nails discovered in the vehicle were identical to those found on the device,” Bloom asked him. “That’s true — Doyle told you that, right?” “Yes,” Chenault answered. “He told you it’s true — absolutely true — that the nails were identical,” Bloom repeated. “Yes.” “Did you later find out that the nails were in no way identical?” “Yes.” “Meanwhile, Doyle was telling you and everyone else that the nails were identical,” Bloom said. “He told me,” Chenault replied. 

Bloom added a few of his trademark fillips (“If Frank Doyle had told you he were 10 feet tall, you wouldn’t believe that, would you?”) before moving on to other matters. But the stage was set: when Bloom got around to Doyle a few days later, the agent had a very different story. 

“Did you tell Sgt. Chenault — did you tell anybody — that the nails associated with the bomb were ‘identical’ to those in the bag?” Bloom asked him. “I would never have used the term ‘identical’,” Doyle said. “It’s a laboratory term, and I’m not a lab technician.” 

It is still not clear whose version of the events is to be trusted, but the fact that one half of the defense is not telling the truth cannot look good to the jury, especially considering that the slender finishing nails that were determined to be taped to the bomb are not even remotely similar to the squat roofing nails and heavy framing nails found in the bags. 

As for the “FBI sub-conference” in the hallway after Doyle finished his work on the affidavit, Doyle, despite all Bloom’s best efforts, was steadfast in his assertions that it was not a “walk-out,” sinisterly staged as an FBI effort to wash its hands of the matter. Doyle testified that all the FBI agents who were at the OPD headquarters at the time met in the hall. “The content of the get-together,” Doyle said, “was to explain some conversations [Supervising Special Agent Reikes] had with the District Attorney and other legal people. The FBI did not feel that there was sufficient cause or reason to arrest Judi Bari and Darryl Cherney at that time.” The agents all left after the conference. 

“You walked out,” Bloom said. “I think you’re selectively using the phrase ‘walked out’,” Doyle replied. “I walked as opposed to flying or crawling out, yes.” Doyle insisted that there was no particular ill will between the FBI and the OPD — in fact, the two agencies worked together the next morning when searches were conducted at Bari and Cherney’s homes. It had already decided that the OPD would be the lead investigating agency on the case, and they would decide whether or not to arrest. 

On another matter, Doyle clung to a belief he formed on that day of the bombing and freely admitted to sharing with the OPD — that the bomb was located behind the drivers’ seat, not under it, when it exploded. The OPD maintains only that it trusted Doyle’s judgment on that day, given his greater experience in investigating bomb scenes.

The plaintiffs sought to undermine Doyle last week by calling Agent David Williams, who examined evidence collected at the bomb site while at the FBI laboratory in Washington, and he came to Oakland three weeks after the bombing to demonstrate his conclusions to the investigators. His work on the case was the principal reason the Alameda County District Attorney never filed charges against Bari and Cherney.

Williams testified that he did not even know that the placement of the bomb was an issue in the case until he came to Oakland. He learned it only after he arrived, when he went to the Oakland police’s Transportation Division garage to demonstrate a mock-up of the bomb that Doyle had constructed. 

“After having looked at different configurations,” he said, “I determined that the bomb could have been as far underneath the seat as it could possible be placed.” One of the most important reasons for this conclusion, he said were the “end cap impact points” that he believed he had found on the body of the car. When the bomb exploded, he reasoned, the brittle end caps that were screwed on to the ends of the pipe would have been among the first things to give. They would have blown more or less straight outward, he said, and he believed he found the points where they impacted on the interior of the car. The two indentations were consistent with the bomb being under the seat. 

Doyle had not taken the impact points much into account. Cunningham, who questioned Williams for the plaintiffs, drove the point home. “Are those the kinds of things you’d expect an expert bomb investigator to notice?” he asked. “That’s not a call I should make,” Williams responded. “Every bomb investigator is different.” “But it’s the kind of thing they teach at bomb school, isn’t it?” asked Cunningham, a dig at Doyle’s status as a bomb school instructor. Williams allowed that it was. 

When Doyle took the stand again the next day, Bloom assailed him with Williams’ opinion. “Did you think to yourself, ‘I’m being trashed, here?’” Bloom asked Doyle. “I did not,” said Doyle. “I was not being ‘trashed’.” “He was contradicting you, wasn’t he?” asked an incredulous Bloom, who was evidently unable to imagine a professional disagreement that wasn’t tantamount to a death-match over personal reputation. “Does that happen very often? Two experts coming to different conclusions?” “Very often,” Doyle said. 

Surprisingly, one of those conclusions concerned the motion-sensitive trigger that Williams had determined to be part of the bomb’s construction. “Did you have any evidence [on the day of the bombing] to suggest that the bomb had a motion-activated device — a booby-trap?” Bloom asked. “That’s not a conclusion I would have drawn,” Doyle answered. Bloom then produced the ball bearing that was found at the site on the day of the bombing, and which Williams had later surmised to be part of the motion sensor. 

“Did you tell any of the other officers that this could well have meant that this bomb was triggered by motion?” Bloom asked. “That’s a ball bearing that was found on the street,” said Doyle. “Ball bearings come from cars — they are often found on streets. I don’t think that a single ball bearing supports the theory that the bomb was triggered by a booby trap.” 

When Bloom pressed him again on Williams’ conclusions about the device, Doyle was even more blunt. “I do not subscribe to his theory that [a motion-sensor] was incorporated into this device,” Doyle said. “One ball bearing and one bent piece of copper wire is not enough evidence to support that conclusion.” 

Williams’ testimony was at odds with the Oakland Police Department on another matter. When he came to Oakland, the theory about the nails on the bomb matching the ones in the car had already been debunked. By that time, though, Williams had had time to study the bomb nails and another set of finishing nails, this batch found in the search at Bari’s house. Though not an expert in the forensics of machining, Williams had asked around a bit and he came to a conclusion — a tentative conclusion, he testified — that the nails were from the same “batch.” 

Chenault later told others that when Williams was in town, he said that a “batch” consists of somewhere between 200 and 1,000 nails. Therefore, despite the fact that there were now doubts about the placement of the bomb, there was new, hard evidence that connected Bari to the device. 

In court, Williams denied ever having said any such thing. He did say that he had done a bit of research into “gripper marks” — the lines near the head of a nail — and that microscopic study of the marks could determine that two nails came from the same batch. He performed such a test, and determined that the nails matched. But he denied ever saying how large a batch would be, and better evidence suggested that the number was in the hundreds of thousands or more. When this information came out, the District Attorney called a press conference and announced that there was not enough evidence to charge Bari and Cherney.

Williams was one of the more convincing witnesses the plaintiffs had called — at least until the moment Oakland city attorney Maria Bee got up to cross-examine him. She started out slow. “You revealed to the people at this meeting that the nails matched, or were from the same batch, is that right?” she asked. “Yes,” Williams answered. “And there was a recognition among the people you were talking to that this was significant,” she said. “That sounds right,” Williams answered. 

That much accomplished, Bee turned on the juice. She asked him for his current job title, and he answered that he was a technician in the FBI’s Baltimore office. Then she replayed for Williams the reasons he was sent down to Baltimore from a top position at the FBI’s national laboratory. Didn’t the Attorney General implicate him specifically in a report on the FBI lab scandals of the mid-90s? Didn’t the report say that he lacked the objectivity and the scientific background to serve as an investigative researcher? Did the AG recommend that another expert, an objective expert, review Williams’ testimony both before and after he appeared in any court of law? Williams could only say “yes” and “that’s my understanding” to Bee’s rapid-fire inquisition. “No further questions, your honor,” she said at the end.

The plaintiffs did not do much to definitively implicate the OPD throughout the week, apart from suggesting that they had arrested Bari and Cherney too soon. The OPD had gotten most of its information — about the nails, the placement of the bomb, and Earth First’s reputation — from the FBI, and Bee made sure both Sitterud and Chenault made that clear during her cross-examination. “You had no reason not to trust what they said, did you?” she asked each of her clients. 

This was too much for Dennis Cunningham, who was desperate to make the point that no one should trust the FBI, ever. He has been smarting from Wilken’s ruling that COINTELPRO would not be introduced as evidence in the case, and that he would not be allowed to call Howard Zinn as his expert witness on FBI trickery. By raising the question of whether OPD officers trusted FBI agents, he felt that Bee had “opened a door” that would allow him to refute that proposition. 

Sitterud, the lead OPD homicide detective on the case, was his target. When the witness came back around to him, he asked, “You were around in Oakland during the Black Panther Party days, weren’t you?” R. Joseph Sher, the US Attorney representing the accused FBI agents, shot to his feet. “Objection, your honor!” he said. With a note of caution in her voice, Wilken sustained the objection. “We’re not going to go that far afield,” she told Cunningham.

A few minutes later, though, Cunningham returned to the subject. He repeated Bee’s question about trust and the FBI, and Sitterud again agreed that he had no reason to suspect the agents’ motives. “Weren’t you aware,” Cunningham wondered, “of articles in the New York Times that talked about…” “Objection!” Sher shouted. Wilken turned to Cunningham, enraged. She reminded him that he was not to ask any questions of that sort. She warned him in her sternest voice not to do it again, and she told him that his examination was over. “You may sit down, Mr. Cunningham,” she said. “But it was a different question, Judge!” Cunningham protested. “You may sit down!” Wilken repeated.

Next week: Special Agent Phil Sena (the San Francisco FBI’s point man on eco-terror), Judi Bari’s daughter, Lisa Bari, and Utah Phillips.

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