Judi Bari and Darryl Cherney’s lawsuit against three Oakland police officers and six FBI agents took on the color of a variety show during its third week, with the Earth First activists’ lawyers bringing in various friendly witnesses in addition to their enemies.
The plaintiffs’ legal team — attorneys Dennis Cunningham, Robert Bloom, and Tony Serra — called two people close to Bari, two slightly shaky “experts,” and one pugnacious FBI agent. Tony Serra finally made his first big splash in the trial while questioning the latter, Special Agent Phil Sena, a defendant in the case.
Lisa Bari (Judi Bari’s daughter) and Utah Phillips (a musical colleague and fellow activist) were brought on one after the other early in the week — Lisa Bari to testify to the toll the arrest took on her mother, Phillips to talk about Judi Bari’s activities on the two days before the bombing. Both witnesses had another function as well: to soften up the jury with direct emotional appeals. Both performed admirably.
The defense put up a fight before each of the plaintiffs’ expert witnesses testified. Sid Woodcock, an explosives consultant, was told he could talk about explosives in general, but was barred by his lack of experience from criticizing actions taken by police officers during the investigation. Anthony Bouza, former police chief of Minneapolis, was also supposed to avoid criticizing the investigation, as to do so would impinge on the role of the jury.
The highlight of the week, though, was certainly Tony Serra’s examination of SA Phil Sena, who had been assigned to the Bari bombing case after investigating the sabotage of power transmission lines by an environmentalist group in Santa Cruz County a month earlier. While working in Santa Cruz, Sena had developed a source who told him that some “heavy hitters” from the environmental would soon be coming to Santa Cruz, possibly with a bomb. Bari and Cherney were traveling to Santa Cruz when the bomb blew up their car in Oakland.
In their pre-trial brief, the plaintiffs charged that Sena had “cooked up” this tip to implicate Bari and Cherney with possession of the bomb. The defendant, when he took the stand, was obviously livid at this and other accusations of misconduct on his behalf, and he came ready to fight. His showdown with Serra was the dramatic high point of the trial to date.
Tears and Laughter
Lisa Bari testified that she first heard of the bombing from her father, Mike Sweeney. “My father picked us up at the bus stop and told us something very bad had happened,” she said. Bari said that Sweeney took his two children home and they went to stay the night somewhere else — because, Bari said, her father thought that the police would search the house the next day. (They did).
The main purpose of calling Lisa Bari was for the plaintiffs to bolster the plaintiffs’ allegations that the false arrest charges brought against her hindered her work and damaged her life up until the end.
Cunningham: Did things happen as a result of what was going on?
Bari: Things were said to me at school, and things were said to her. Throughout my schooling, when I went to school in Willits, I was harassed about it. I remember a couple of people who had been her friends before who had believed the charges. I think she was really shocked people would believe that.
Cunningham asked Bari, who was nine years old at the time of the bombing, what she had felt when she understood what had happened. “I had somehow convinced myself that if I had been there with her it wouldn’t have happened,” Bari said, as she began to weep. Several spectators also began to cry.
Bari said that her mother, weakened by the bomb and later by cancer, spent the last few years of her life trying to clear her name. “She was always going around talking to people about what had happened to her and what had happened to other people in similar situations in the past,” she said.
At this, Dennis Barghaan, co-counsel for the FBI defendants objected, as the court had previously ruled that testimony about COINTELPRO and FBI dirty tricks against the likes of the Black Panther Party or Leonard Peltier would not be allowed in court. This was obviously where Bari was headed. Wilken overruled him.
Later, on cross-examination, Barghaan asked Bari about her father removing the family to a neighbor’s house on the night of the bombing.
Barghaan: You testified that you were taken away from the house in anticipation of an FBI raid.
Bari: That’s what I think.
Barghaan: You weren’t there when it happened?
Barghaan: You heard later that it was the FBI?
Bari: That’s what I know.
Barghaan: At the time, it could have been the Royal Mounted Canadian Police, for all you knew?
Bari: The horses would have fit right in.
All the tears must have moved the jury, but the testimony of Utah Phillips was even more formidable. The entire courtroom — including the defendants and their attorneys — was in thrall to Phillips’ grandfatherly baritone almost from the moment he took the stand.
Cunningham started out asking his relationship with Bari. Phillips took off on a grand tour of the labor movement, non-violence, etc., before Barghaan interrupted. “Objection, you honor, the witness is narrating,” he said before hastily adding “We enjoy it, but he’s narrating.” Wilken asked Phillips to finish up and let Cunningham ask another question.
Cunningham: What is your occupation?
Phillips: Critics are divided. I’m a folksinger and a storyteller.
Cunningham: And you make a living at that?
Phillips: There’s a saying. “If you want to make a million in folk-singing, start out with two million.”
Amazingly, Special Agent Sena tilted back his head and laughed along with everyone else. Cunningham talked with Phillips about his interest in Redwood Summer and Judi Bari’s music.
Cunningham: Was she good?
Phillips: Well, I think she was better than I am.
This again generated a good deal of mirth in the courtroom, and a quick glance at the defense table showed their expressions stiffening. They must have realized that they would have to take whatever was said with grace — it wouldn’t do to conduct a nasty cross-exam.
Cunningham turned to Bari’s summit with timber workers at John’s Place in Willits on the night of May 22nd, at which Phillips was present. He said that the loggers and Bari got along well at the meeting and that “By this time, I was certain that her non-violent approach was very effective.”
Bari, Phillips, and two other colleagues then drove down to Bari’s home in Redwood Valley to spend the night. The next morning, the day before the bomb exploded, Phillips rode with Bari to Berkeley to meet with the Seeds of Peace organization, who promised to provide logistical support for Redwood Summer. Cherney met them there. Phillips said that he recorded an interview with Bari on the drive down. “She acted the way she always acted,” he said. “She laughed a lot, she was very light-hearted.”
In his cross-examination, Barghaan focused on the meeting in Willits — the place and time that the Lord’s Avenger later claimed to have planted the bomb. Barghaan had Phillips describe the seating arrangements on the drive back to Redwood Valley. His musical colleague, an apparently large man named Dakota Sid, sat behind Bari, where he probably would have kicked the bomb, had it been placed in the car there.
Parade of Experts
It’s unclear exactly why the plaintiffs called Sid Woodcock, an explosives expert. He contributed nothing that one of last week’s witnesses, Agent David Williams of the FBI, hadn’t already contributed the week previous. Williams, who had studied the bomb at the FBI’s Explosives Unit in Washington, D.C., had studied the bomb first-hand, and he had already come to the conclusion that it was placed under Bari’s seat, not behind it. That’s all the plaintiffs really wanted Woodcock for.
But Woodcock projected a sort of folksy charm that the FBI agent did not, and Woodcock was untainted by the FBI lab scandals of the 90’s, as Williams was. His purpose, it seemed, was to encourage the jurors to trust their own eyes and not high-falutin’ scientific theories. Of course the bomb was under the seat — just look what happened to the seat.
But since Woodcock was to be an “expert” witness, the attorneys had the right to question him on his bona fides before he began his presentation to the jury. Dennis Cunningham established that Woodcock had a long resume detailing his work with explosives, and had qualified as an expert witness in the Oklahoma City bombing case.
R. Joseph Sher, lead counsel for the accused FBI agents, was seeking to keep Woodcock off the stand, or at least to place his credibility in question. He started by asking Woodcock if he had any formal training in the strength of material. Woodcock said he had — several decades ago when he worked for the Hanford Nuclear Facility in Washington state.
Sher: Do you have any training in dynamic loading?
Sher: In structural failures?
Woodcock: No, no training in that.
Sher: Do you have any training in forensic analysis?
Woodcock: No, not really.
Sher: Your honor, we would oppose his certification as an expert, since the case does not hinge on the dynamics of explosions — it hinges on forensic analysis, which he admits he had no training in.
Cunningham returned and asked a number of questions about Woodcock’s work in the Oklahoma City case. “Judge, I think he’s qualified, and I think he has the experience to comment on this case,” he said. Wilken let him proceed, telling Sher that she would instruct jurors that as with all witnesses, it was up to them to judge his credibility and expertise.
Woodcock said that he had examined several photos of the Subaru and had come to California to look at it in person. He said that it became clear to him from the photos that the bomb was under the front seat: the hole the bomb blew in the floorboard was centered around the seat, the front doors were ballooned out, and the front seat itself was nearly destroyed. The back seat had suffered little damage.
When he visited the car, he said, he thought he found at least one of the “end cap impact points” of the bomb — small dents that would have marked where the brittle bits of pipe at either end of the bomb would have flown outward and struck the side. These, too, were consistent with the theory that the bomb was under the seat. Cunningham had Woodcock wrap up by showing him a photo and pointing to a spot on the rear floorboard.
Cunningham: Did you have an opinion as to whether the bomb could have been placed here?
Woodcock: Very definitely it could not have been.
Cunningham: Can you find any good reason why investigators would have come to the conclusion that the bomb behind the seat rather than under it?
Woodcock: No, sir.
As soon as he said this, though, he launched into a long example of how every bomb was different and how explosions were by their nature unpredictable. Take two 50-gallon drums, he said, and place an identical charge in each. The drums will likely come apart in very different ways. “The energy doesn’t always distribute itself in the same way,” he said. “You can’t always tell.”
Sher fairly pounced on this when he began his cross-examination.
Sher: Let’s start with the example you just gave. Isn’t because the drums would have different weak points in their structures?
Woodcock: It could be.
Sher: You testified that the damage in an explosion would occur at the structure’s weakest point.
Woodcock: Yes, sir.
Sher: And you don’t know anything about the structure of the floor of that car — where it had been rusted, for example?
Woodcock: No, sir.
Sher: You don’t know where the weakest point might have been.
Woodcock: Yes I do, sir. Where the hole was.
Oakland city attorney William Simmons then asked Woodcock if he had talked to Cunningham about Earth First and Redwood Summer before agreeing to work on the case. Woodcock said he had, and that he had done a lot of research on his own as well. He wanted to be satisfied, he said, that the plaintiffs could not have been responsible for the bombing before beginning work on the case.
Woodcock: I don’t go around helping people who blow other people up.
Simmons: But you worked for Timothy McVeigh, didn’t you?
Woodcock: I worked for his attorneys.
Simmons: Well, Timothy McVeigh blew up a lot of people, didn’t he?
Woodcock: That was a different thing. They wanted some information.
Simmons: They paid you, didn’t they?
Woodcock: Everyone’s entitled to a fair trial.
Odd as he was, and despite the fact that the defense led him into spouting absurdities and incriminating himself, Woodcock got the plaintiffs’ point across. The same could probably not be said for Anthony Bouza, who they wished to qualify as an expert on “police practices.”
From the start, Bouza was hemmed in by two limitations. He had no training as a bomb scene investigator, and he was not allowed to directly criticize actions taken by the defendants. It is the province of the jury, Wilken reminded the plaintiffs, to decide whether or not the defendants had probable cause to arrest Bari and Cherney. The plaintiffs had no right to call an “expert” to tell them what to decide.
Nevertheless, and despite warnings that his testimony would be strictly limited, the plaintiffs forged ahead with Bouza. He was forced to stick to generalities about police procedure. What should a policeman ask himself before making arrest, Cunningham asked him. “Did a crime occur, and can I gather enough evidence to prosecute it.” Bouza responded. There was a lot of this.
Cunningham brought up the fact that the Alameda County District Attorney’s office eventually declined to prosecute the case. What did that indicate? “If the prosecutor declines to charge the case, it obviously says something about the quality of the arrest,” Bouza said. Sher focused on this statement during his brief cross-exam.
Sher: You yourself have made arrests that didn’t result in charges being brought, haven’t you?
Sher: That didn’t mean they weren’t valid arrests, did it?
Bouza: In my view they were valid.
Phil Sena, a hawk-faced man a good decade younger than any of the other FBI agents accused in the case, was involved in the case in two ways. He was the lead investigator of the “Earth Night” destruction of power lines in Santa Cruz County a few weeks before the bombing. In the course of that investigation, he had run across Bari’s and Cherney’s names on an Earth Night flyer and he developed a source who had told him about the “heavy hitters” who would be coming to Santa Cruz. Also, he was one of the first law enforcement officials to interview Cherney after the bombing.
Tony Serra examined Sena, first asking him a few questions about his background and his regular FBI duties. After just a few questions, though, Serra and Sena got into it over the semantics of the counterterrorism unit he and the other FBI defendants belonged to, the so-called “Squad 13.”
Serra: How long, come May 24th , had you been with Squad 13?
Sena: Three years.
Serra: Why was “13” the number that described the squad?
Sena: I haven’t the foggiest idea.
Serra: You didn’t help pick the number?
Sena: I did not.
Serra: You would agree that the number 13 has connotations… unlucky, negative connotations?
Sena: I suppose. I’m not a superstitious person.
The exchange irritated Sena, and it set the tone for the many spats that would follow. Serra established that Sena worked only a few days on the Bari and Cherney matter before returning to his other pending cases. One of these was the Santa Cruz incident, and another was the arrest of a fugitive who had killed a policeman. This intrigued Serra.
Serra: By the way, is there a hierarchy of investigative priorities where activists — Earth Firsters, environmentalists — they don’t count as much as the unfortunate murder of a police detective?
Sena: Only in your imagination, sir. And I’ll remind you that the FBI listed Judi Bari and Darryl Cherney as victims throughout all this case. They were not suspects.
After a few moments, Serra returned to the question.
Serra: I suppose you have a photographic memory, that you remember everything you read?
Sena: I would have remembered that. There was a consistency throughout the file.
Serra: You’re exaggerating what you remember, aren’t you, officer.
Sena: Not in the least.
Sena, who happened to be spending the day of the bombing in the San Francisco office rather than his Santa Cruz office, was assigned to the scene by the agent in charge, Donald Sachtleben. Sachtleben, who testified earlier in the week, said that he sent Sena because he knew that he had some experience with cases involving environmental activists.
Upon arriving at the bomb scene, he took a brief look at the car and was then dispatched to the hospital to interview Cherney. He was sent there, he said, he had some medical training and he could probably “wade through the medical terminology” better than other agents could.
Sena said that Cherney was cooperative throughout the interview until he or one of the other two FBI agents there asked him if he would take a polygraph test to clear his name. But Sena, unlike another agent present, did not take down the fact that Cherney said he wished to speak to a lawyer before consenting to a polygraph.
Serra: Was that significant? Did you leave the lawyer part out on purpose?
Serra: The bottom line is, isn’t it a fact that how you did your report you were manifesting a bias against Earth First?
Serra: Isn’t it a fact that based on your experiences in Santa Cruz, you were trying to portray Cherney in the worst possible light?
Sena: No, I had no bias toward Darryl Cherney or Earth First.
Serra: His request to speak with a lawyer — was that so outlandish a request in your mind?
Serra: Why were there three reports? Is that typical?
Sena: No, it was chaos. Typically we would try to condense them into a single report.
Serra: The chaos was not created by Darryl Cherney, by the plaintiffs in this case, was it?
Sena: Certainly not.
Serra: The chaos was created by you!
Sena: No, the chaos was created by the event itself. Usually, when there is a crisis scene like this, there is chaos. It took a day or two to get things coordinated, otherwise there wouldn’t have been three of us making this report.
Serra: Aren’t you in Squad 13 trained to respond to a bombing event in a designed manner to eliminate chaos?
Sena: Absolutely not. You can’t eliminate chaos, all you can do is manage it.
Sena said that the only reason for the omission was that he was in the habit of submitting very brief reports. But when he was cross-examined by Sher, Sena allowed that when Cherney did not immediately agree to a polygraph, he began in his own mind to consider Cherney a possible suspect. “My perception was that Mr. Cherney was more concerned with getting his message to me about being victimized than the totality of the situation,” Sena said. “He was completely unemotional. That was the opposite of what I’d been trained to expect [about victims]. He added that the polygraph seemed a quick way for Cherney to clear his name, and that when Cherney hesitated he became suspicious.
But Serra was ultimately more curious about Sena’s work in Santa Cruz than with his actions on the day of the bombing. Sena said that he had first heard Bari’s and Cherney’s names when investigating the power pole sabotage when he came across a poster for Earth Night that listed them as contacts.
The picture on the poster was the same as that on Dave Foreman’s book “Ecodefense,” a monkeywrenching manual. The book contained instructions for sabotaging power lines that were similar to the methods employed in Santa Cruz. Sena said that he made some calls to Northern California law enforcement agencies, though, and ruled Bari and Cherney out as suspects in the case. But Serra wanted to hear more about the poster.
Serra: Did you investigate how that poster was created, whether Darryl or Judi had anything to do with it?
Sena: I investigated the poster, yes.
Serra: Did you ascertain that the original poster had no names on it — that Judi Bari’s and Darryl Cherney’s names were added when the poster was doctored by people connected with the timber industry?
Sena: I had no knowledge of that.
Serra: Did you ascertain that there had been seized, by law enforcement, copies of the Earth Night poster without the names of Judi Bari and Darryl Cherney?
Serra: Did you interview Judi Bari or Darryl Cherney with regards to their names on the poster?
Sena: I had no reason to. They were not suspects.
Serra: Did you interview a Candy Boak as to whether she had placed their names on the poster?
Sena: I would have no reason to.
Serra: Were you aware that individuals connected with the timber industry created fake Earth First press releases?
Sena: I would have no reason to be aware of it! My investigation had nothing to do with the timber industry or Earth First!
Serra also needled Sena about the “heavy hitters” tip. Sena’s position was that he had discussed the tip with his supervising agent, John Reikes, when he received it, but that he had not shared it with any other law enforcement agency until the Bari and Cherney were bombed. Even then, he testified, he did not mention to the OPD the fact that his informant had spoke of the heavy hitters carrying a bomb because “that was the least credible part of the tip.”
The plaintiffs would dearly love to prove that Sena did, in fact, tell this to everyone at a joint FBI-OPD meeting the night of the bomb. It would be a key component — perhaps the only component — of their claim against him. They believe that they know who the “heavy hitters” informant is, and they believe that Sena should have known that she was an untrustworthy drug addict and mental patient. So far, though, they have been unable to find anyone to contradict him.
Next week: Darryl Cherney, Judi Bari’s videotaped deposition, and FBI agents Stockton Buck and John Reikes.